Memory, Resistance, and Doubt

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress has non-enumerated powers as well as enumerated ones.

In a way, this potential explanation is the most straightforward of all possible explanations. The Court did not identify an enumerated power because it did not think it was required to. So it is worth thinking about why twenty-first century lawyers would be unlikely to proffer that explanation—and indeed, likely to resist it when offered. This abstract was taken from Part I of the article.