We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional interpretation, the relationship between the official story of the law and legal practice, and wrestle with the surprisingly hard question of how many congressional powers are listed in the Constitution.
We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional interpretation, the relationship between the official story of the law and legal practice, and wrestle with the surprisingly hard question of how many congressional powers are listed in the Constitution.
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Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, there's been a few things going on in Supreme Court shadow docket world, and we're going to talk about zero of them today because, as we sometimes do during the dog days of August, we're going to have a change of pace and we're going to do one of our book episodes. So, we are joined today by Professor Richard Primus of the University of Michigan Law School, who is going to talk with us about his new book, The Oldest Constitutional Question: Enumeration and Federal Power. So, this is a really, really fascinating book of constitutional history and theory. So, Richard, maybe we could just kick it off by having you tell our listeners the basic gist of what the book is about, and then Will and I can batter on some questions.
Richard: Sure. And thanks to both of you for having me. I really like the podcast, and it's delightful to be here with you guys. So, this book is about one of the core ideas of constitutional law, which is the idea that the federal government is a government of enumerated powers. Anyone who has taken an intro class in constitutional law has been taught this principle. If you walk into a cocktail party full of constitutional lawyers and say, “Well, the federal government is a government of enumerated powers,” everyone will nod their heads along. What the proposition means is that Congress faces a different default rule in legislation than the default rule that state legislatures face.
A state legislature presumptively is a legislature of general jurisdiction. It can make law on any subject it wants. However, it understands the public interest, it can legislate. It is restrained only by affirmative prohibitions. So, it can't censor speech to conform with a political ideology. It can't establish a religion. It can't impose a cruel and unusual punishment. It can't do things prohibited by its own state constitution or by federal statute. But unless there's some “thou shalt not" rule that blocks the state law, state legislature can make law on any topic. Congress is not like that.
The Con Law 101 bedrock doctrine is that Congress is not like that. Congress has a set of enumerated powers, meaning powers affirmatively specified in the text of the Constitution. A bunch of them are in article on Section 8. Not all of them, but a big share of them. And when you assess the constitutionality of a federal law, you need to answer two questions, not just one. You need to answer the question, “Does anything in the Constitution forbid this?" Just like with the state law. But before you even get there, you need to answer the question, is there an enumerated power in the Constitution that justifies this legislation? And only if the answer is yes, can you then get to the second question? It's worth noticing maybe, that what enumerated means here, it doesn't mean numbered.
The Constitution doesn't number the powers of Congress, and it's actually a fun parlor game task. How many powers does Congress have? I've gotten very different answers to that question, when I ask students to go through the document and make a list. It means something like affirmatively specified. An enumerated power is one where I can point to specific power conferring words in the Constitution and say, “This language says Congress shall have the power to do X and then Congress has the power to do X. And when I learned con law as a student, I learned this principle. We all learn it that Congress can only legislate on the basis of its enumerated powers and call that the enumeration principle.
And there's a second idea that's not analytically the same but very closely aligned with it, which says that the sum total of Congress's enumerated powers empowers Congress to do less than it could do if it were like a state legislature, a legislature of general jurisdiction. There are things beyond the enumerated powers that Congress could do if it had the authority to legislate just however it wanted, subject only to affirmative constraints. And the rationale that makes that second rule seem like it intuitively follows from the first one is that we are all taught that the reason that the Constitution enumerates congressional powers and limits Congress to those powers is to limit the legislative footprint of the federal government.
It's a device to protect the balance of power between the national government and the states by making sure that the national government doesn't grow too powerful. You make a list of what Congress can do, you confine it to that list. Therefore, that list has to be less than a comprehensive grant of power would be. And we learn a set of historical accounts and textual readings that all hang together and support this idea. The story as we learn it is that the framers of the Constitution deliberately used the strategy of enumerating congressional power as a way to limit Congress that The Tenth Amendment exists to confirm the principle. That this is a principle that goes all the way back and has been recognized throughout the history of constitutional law.
There are some canonical John Marshall opinions that we cite for the proposition, including his statement in McCulloch that this is a government of enumerated powers, his statement in Gibbons v. Ogden that the enumeration presumes something not enumerated. And we learned this is a crucially important part of American federalism. This is all Bedrock Con Law 101. And when I came into the profession, both as a lawyer and then as a teacher of constitutional law, I believed it, I thought it made sense. It all sort of hangs together. But over the course of time, as I taught constitutional law and was put in the position of explaining this to students, I became increasingly uncomfortable with it because I started noticing lots of little ways in which the way the system works in practice or the history of the Constitution or something else didn't really quite fit the story.
And I've come to the view that the story's not right, that this way of looking at things is one possible way of looking at constitutional law, but it's not necessary, and it's probably flawed enough to be worth discarding. And the book is an attempt to explain why. So, for this whole apparatus, this way of thinking about the powers of Congress, I've adopted the term enumeration-ism, which isn't mine originally. I believe the credit for it goes to David Schwartz of the University of Wisconsin. And my view is that enumeration-ism is a story that we, the con law people, tell ourselves and teach our students to explain a bunch of things. But there are a bunch of problems with it, and we can think about those problems under the big three headings of text, history, and structure, in the way that constitutional interpreters often do.
Enumeration-ism rests on a certain set of readings of text. So, there's a reading of The Tenth Amendment, according to which, while The Tenth Amendment just obviously says what is not enumerated in the Constitution as belonging to Congress, is reserved to the states. Only the thing is, The Tenth Amendment doesn't actually say that. The 10th Amendment doesn't speak the language of enumerated powers. It speaks the language of delegated powers. And for reasons that I can explain, I think it pretty clear that those aren't the same thing.
Powers can be delegated expressly by text. They can also be delegated implicitly, The Tenth Amendment, I think it's pretty clear historically, was written to leave open the possibility of implicit as well as explicit delegations. We gloss that over and wipe it out of our collective memory to a large extent because it doesn't fit the enumeration-ist story. There's a reading of the vesting clause of Article 1. Article 1, Section 1 says, “All legislative powers herein granted shall be vested in the Congress of the United States.” And since the 1990s, constitutional interpreters of many different jurisprudences and ideologies have read that clause to mean that we know that Congress can only exercise its numerated powers because Section 1 doesn't say Congress can legislate. It speaks of the legislative powers here in granted, which we understand to mean the things that follow in the text as enumerated affirmatively.
And the problem with this is that's a reading of the text as if Section 1 said only the legislative powers here in granted shall be vested in the Congress of the United States. And that's not what Section 1 says. It says all legislative powers here in granted shall be vested in the Congress of the United States which is also consistent with the possibility that there are also other legislative powers vested in the Congress of the United States. And then there's the well-respected, well-traveled idea in constitutional law that the very fact that the Constitution contains a long list of particular powers, Article 1, Section 8, is a signal that those are all the powers that Congress has.
There are a bunch of modern constitutional opinions from the pens of people like Chief Justice Roberts and Justice Gorsuch and others that make this move. The move is often attributed to John Marshall and Gibbons, although for reasons we can talk about if you want, I think that's a fallacious reading of Gibbons. But there is an intuitive force to the idea. Why write a long list if the power is general, if there are also powers off the list? But I don't think that works either. There are lots of reasons why you might write a list and have a list not be exclusive. And in fact, Article 1, Section 8, we know is not an exclusive list of congressional powers because there are a bunch of congressional powers that are not in Article 1, Section 8.
So, if we were supposed to learn from the fact of the detailed list that there aren't other powers, it would be kind of weird because we know for sure that there are other powers that are not part of the list. The question is, “Are there other powers that are not part of the list and also not elsewhere in the document” and the fact of the list doesn't speak to that one way or the other. And then I think, okay, that's about text that doesn't establish that there are other powers, but it calls into questions that it's a necessary fact about the text of the Constitution that it establishes the enumeration principle. And then I came to doubt whether the idea of the limiting enumeration actually does any important work in American federalism. So, here's sort of the joke.
The first thing the constitutional lawyer learns is that Congress can only legislate on the basis of its enumerated powers. And that's enormously important for federalism. But the second thing you learn by the end of the semester is it doesn't actually seem to limit Congress very much, because for going on 100 years, Congress has been able to legislate more or less anything that it has the political appetite for and bring it within the enumerated powers. Now, there are a bunch of people who recognize that to be a reality of the last hundred years and think it's a flaw. It's a bug in the system. It means that we're reading the enumerated powers too broadly. But I started to think, what if it's not the case that we've been doing it wrong all this time? What if we're doing it right, and what's wrong is the thought that Congress is supposed to be more confined.
And then I go to the history, which is usually read to tell us that the framers deliberately chose the limiting enumeration as a theory when they wrote the Constitution, that the ratifiers understood it that way and ratified it in reliance on that way, and that we've operated the system that way since. And what I try to show in the book is that historically, none of those three things is true. That there's a pretty good reading of the convention on which the enumeration results from a mix of motives other than a desire to limit Congress, including chiefly a desire to make sure that Congress is empowered enough that there's a very good reading of the ratification debates, where the ratification debates involve people arguing all kinds of different things about this question, and nobody really seems to persuade anybody else. That is to say, it's an open question at the beginning whether Congress has more powers than are listed and it's an open question still at the end. And that over the great sweep of constitutional history, federal decision makers, including the Supreme Court, for a long time, especially before The New Deal, periodically openly acknowledged the validity of certain congressional powers not specified in the text of the Constitution. The legal tender cases are like this. There are cases about Native American governance and foreign affairs and territories and a bunch of other things that are like this.
And then a funny thing happened in The New Deal, more or less. The conventional story is that The New Deal adopted broad constructions of the enumerated powers, especially the commerce power, maybe the commerce power and the taxing power. And because of those constructions, the enumeration doesn't limit anymore, which is what it's supposed to do. I have the intuition that it's possible that what makes it possible for us to continue insisting that Congress can only do what's enumerated is that that insistence doesn't have any real bite, doesn't have any real consequence in a world where you can bring anything within the enumerated powers. So, it's cheap to continue asserting it.
And as long as it's cheap to continue asserting it, we might as well, because we all kind of like it. We nod our heads like we feel like we're in communion with John Marshall and the framers and other people to whom we attribute this idea. And it doesn't do any real work in constitutional law. Now, a lot of what I've said is controversial. There are lots of cavils that people might raise and questions that people might have about it. And that's why the book is long. So, I look forward to your skepticisms and our conversation about it. I wrote the book precisely because I think this is not a normal way of looking at it, but I think it's a pretty viable way of looking at it.
And so, in the best-case scenario, I would like to persuade more people to understand it this way, because I think it makes sense. And in the second best case, I would like people who are still attached to the enumerationist view to have to think, “You know, I still like the enumerationist view, but I have to also acknowledge that this isn't the only way to look at things, that someone who doesn't share the enumerationist view isn't necessarily foolish or unlearned or mendacious or disingenuous, that there is in fact, a legitimate other way of understanding what's going on here."
Dan: So, lots to ask about maybe, I'm sure, Will, you have plenty of questions. But my first question relates to what you were just saying, which is a question about the burden of proof you have set for yourself. Because at various points in the book and what you were saying, well you were saying there's a pretty good reading—like in terms of displacing this view, which, as you acknowledge repeatedly, is really, really deeply ingrained in how we think about and talk about constitutional law. Should there be a higher burden? Is it enough to just say, “You could read it this way, you could read it that way.” And it was a little unclear to me exactly how much you believe you're reading. Do you feel like you're convinced beyond a reasonable doubt? Do you think it's just more likely than not? Something in between those things? And how do you think the reader should feel?
Richard: So, I'm persuaded in something like a clear and convincing way, that is to say, “I think what I write is right.” I'm always open to the possibility that I'm not right and sometimes I'm more confident and sometimes I'm less confident. I think I'm reasonably confident here. I should be clear. The thing of which I am reasonably confident is that this other view was always available and sometimes prominent and sometimes dominant. I'm not claiming that no one has ever read the Constitution in an enumerationist way. I'm not claiming that no one at the convention had that view. So, of course, people also had that view. But for the claim that I actually make in the book, I'm pretty confident.
Now, your question about the burden of proof is a good one. I think the most important thing to say about the answer is I don't think that it's the kind of question that's susceptible of rule-like regulation. They say, “I don't think that I can specify.” Here's what I would have to show to make this idea, an idea that other people would find persuasive and adopt. I think it'll persuade people or it doesn't, and it'll persuade people to the extent that it does. I think they ought to be persuaded. But I don't get to decide that. And I don't think anybody could say, “Well, if you had shown this extra quantum of evidence, then people ought to be persuaded.”
I don't think that's the way persuasion works. So, I don't think that I can give a more satisfying—I mean, unless—I find that to be a satisfying answer because I think it's the real answer. But if what we're looking for is answer that quantifies the burden of proof or that can specify in an ex-ante way what would have to be shown that isn't shown here, I don't think the question is susceptible to that kind of answer. And the bullet I have to bite for that is that if people say, “Yeah, I've read you and I'm not persuaded,” I sort of have to accept that. But I think that would be true anyway.
Dan: So, can I ask before I let Will go, I'm sure he's got plenty. Can I ask one follow up? So, it's basically the theory of constitutional meaning underlying the way you answered that question is that contrary to what some hardcore originalists might think, there's never a fixed meaning. There is just arguments that are in play and that have been in play throughout our history and your job is to here is to show us, “Look, this other view has been very much in play for a very long time and we just forgot it at one point.”
Richard: Well, something like that. I think that there are some domains of constitutional law where it makes sense to make claims about relatively fixed and stable meanings. I think that when the Constitution says, “You need two thirds of the Senate to confirm an appointment,” I think we have a very highly convergent sense, across Americans at any given time and also through time about what we mean by two thirds. And like, we could give various other examples. And then I think there are other areas where people's sense of what the meaning is, is less convergent.
And I think that in a bunch of those domains, I would be willing to go to bat for the proposition of the various meanings that are in play, these are wrong and these are viable, and sometimes even like there's a uniquely best one, right, out of the ones that are viable. But I do think that a lot of the time the question of which meaning is correct is not one that can be settled external to the practice of constitutional decision making. It can only be settled internal to the practice. And all such settlements are provisional until the practice of constitutional law decides something else, because what's really being decided is not the meaning of the Constitution, but how state power will be deployed in the present dispensation.
And that comes along with an argument, a set of persuasive technologies in the conversation about why to do it that way. And that succeeds for as long as it succeeds.
Dan: So, I've got plenty to ask, but I'm going to let Will have his turn finally.
Will: Well, so I have many questions, but one to jump in on is maybe sort of the methodological question, because I think one of the really interesting methodological things about this book is the sort of trying to disentangle the official story of enumeration from the practice of non-enumeration. And of course, I find this interesting because it's something you and I have exchanged on a little bit. In our law, often we have these ritual recitations about the law, and then often we have this thing that all lawyers know will happen, and I guess a big question is, does one of those things have priority? And what do we make about the way—or one thing we could both disagree on is those are two interesting phenomena about American law.
And it's interesting that you have to go into court and say the government is one of enumerated powers, or the judge will laugh at you. And also, you know in an enumerated powers case, if you're the government, you will win.
Richard: Yes.
Will: And it's interesting that both those things are true. And in some work, I think I am a person who often champions the official story. And I say, “Look, we have this official story of the law, and our judges are not living up to it. What a tragedy." And you maybe do the opposite. You say, “Look, we have this official story of the law that's false, we all know, doesn't match our real law, so let's stop being misled by it.” And there's a lot, am I right to say you're prioritizing one over the other and why?
Richard: So, I think you're more right than not, but I think it's a little bit more complex. I certainly think it's the case that you and I have a standing difference in perspective on how to think about this question, but that we agree that it's a really important juxtaposition to think about. So, we can't do law without official stories. Official stories are hardwired into the fabric of how our culture does law. I think what's important is to be able to see the official stories as stories and then to think about what work they're doing and how we should rest on them and when we should not rest on them. So, what I don't think is that the official story is always a prescription that should be taken seriously at face value and to which we must make our practice conform.
I think there are lots official stories in normative cultures that it's a mistake to think about that way. I lived in England for a few years back when Elizabeth was still on the throne, and at many public observances, people say or sing “God Save the Queen.” But it doesn't mean what it might mean if you took the official story seriously in a certain way. A Member of Parliament would be behaving oddly by getting up in Parliament and saying, “Even though statutes of Parliament are officially styled, be it enacted by his or her Royal Majesty," a Member of Parliament would be behaving oddly and getting things wrong by saying, “Well, we should do this because the King wants it.” That's not actually how it works. And my guess is that you probably agree with me that there are some official stories that are like that.
There are some official stories that we don't mean quite that way. I mean, whether the official story, this is my body, means that or doesn't is a question that different Christians have answered very differently over the years. So, the question is, which official stories should be taken as explanatorily, directly prescriptive and which ones shouldn't? And I think that there are a bunch official stories in the law that shouldn't be and that the enumerated power story is one of those. And I think that in part because I look at the practices of legal decision making which don't seem to conform to the story, or at least not in a straightforward way, and I have a hard time thinking that we've all been doing it wrong all along.
And then I think, well, okay, but Will's voice in my head says, “Okay, but we have been telling the story wrong all along?” And I think, well, no, but maybe the real truth, maybe this is strictly speaking a paradox and not a contradiction, is that the system lives with attention. A set of practices and an official story that don't really cohere are two parts of the system in tension with each other, and that the system can be healthy with the tension. I would be okay with going on telling the story if we were all also decided that we were going to be okay with going on with the practice. My sense that we should stop telling the story is provoked by what I take to be the movement in our times to force the practice to conform to the story. Because if we're going to not live with the tension and we have to pick one or the other, in this case, I would rather live with the practice because I think the practice is pretty healthy. And I think that giving up the practice would be sacrificing a good practice to a bad abstraction. But it's not a general rule about stories. Sometimes stories are helpful, and it's precisely because stories are powerful that they are useful and necessary and worth interrogating.
Will: So, if a Justice had sort of come to you and said, “Look, Richard, I agree with you. This is just a story we tell and it doesn't really match, etc., but for the reasons you say, telling the story is an important part of the equilibrium. We tell the story and then we uphold the statutes. So, I'll make a deal with you. Withdraw your book from publication."
[laughter]
"Don't ruin it by getting rid of the story. If I can promise you my colleagues will uphold all the statutes and we'll just maintain equilibrium."
Richard: Yeah.
Will: Would that be a good deal?
Richard: Well, if we can magically guarantee. Well, the truth is, of course it would be a good deal because my book is not going to persuade [Will laughs] anyone to change how it actually happens. This is going to give me much more purchase in the real world than it will actually have. But to take the hypothetical in the terms that it is intended, where I can take my shot at really producing clarity, or I can abandon that effort and go on with the paradoxical tension between the story and the practice. If we add to it that we can be reasonably certain that out to some indefinite time, the promise will hold, it's not just like, for the next couple of years, yeah, I would take that deal. I would withdraw my book under those circumstances, sure.
Will: But I guess, yeah, you need to put it in escrow. You need to say, “Okay, look, Justice, you get it, your colleagues get it. But at some point, in generation people are going to come along who don't get it.” [laughs]
Richard: Yeah, that's right. We could have a springing book clause where if anyone starts to take the story too seriously, then the book comes out and does its best to make them rethink that move.
Will: Yeah. Okay.
Dan: Can you talk a little bit more about what you think the world should look like if everyone were to accept your book. You say there's a couple different possibilities. One is accepting this idea of implied powers, and I guess is the other one just basically going back to pre-Lopez understandings of the commerce clause.
Richard: Yeah. The thing that I call “Cumulative Coverage.” So, I guess I would say this. First choice would actually be maintain the tension, because the tension's fine with me. There are certain positive things that the story does as long as we don't misuse it. So, if it were possible to go on telling the story while also being aware that it is just a story and being aware of why the practice is a good one and we should go on with it, that's fine with me. That's either first or tied for first place.
The thing that's either second or tied for first place is what the book calls the Model of Implied Powers, which, in the way I tell it, was prominent, let's say, second half of the 19th century and up through the age of Curtiss-Wright, where there are a bunch of cases where the Supreme Court is willing to say this is something that Congress can do even though there's no enumerated power that we're pointing to. The power is inherent in the fact that Congress is the national legislature or the power is implicitly given in light of the decision to create this particular national legislature and the reasons for which we have the government of the United States. Those sorts of things. That's not a model invented by the Supreme Court at that time.
There are a bunch of people at the Founding who want the government to work that way and expect it to work that way. There are a bunch of other people at the Founding who don't want the government to work that way. That's a model on which Congress has the enumerated powers. But the enumerated powers don't exhaust the powers that Congress has. And you might ask, “Well, then how am I supposed to know what powers Congress has after that if they're not enumerated?” Fair question. And the answer is, “Well, we've got some case law, that gets us going". And is there a zone in which you just have to have arguments about what makes sense as a matter of federalism? Yeah, but that zone is not so big and I think ineliminable in any case in reality and how decision-making works. So, it doesn't scare me all that much.
Third choice or second place, if we give the first two a tie, is the thing that I'm calling the Model of Cumulative Coverage, which is, I think, the de facto regime, let's say, between Wickard v. Filburn and Lopez and maybe also after Lopez if you really think about it. It's the model where we don't anymore recognize non-enumerated powers, but it doesn't matter because the enumerated powers can get you anywhere. I think a really interesting recent Supreme Court decision is Haaland v. Brackeen. It's an Indian law case.
And what's super interesting about it is that the question of Congress's authority to pass the statute at issue could rest easily on old case law from the time of implied powers that says Congress gets to do this stuff because it's Congress and they're Native Americans, and that's how it works. And the Court is very uneasy about resting on that justification. So, Justice Barrett sort of skillfully writes an opinion that wobbles back and forth between the idea that—it doesn't quite commit to the idea that is enough, but it doesn't quite say that's not enough. And it draws connection to some enumerated powers. It suggests that really it's enumerated powers and Justice Gorsuch is not having it. And he writes a 700-page opinion saying, “No, there are only enumerated powers and it's got to be enumerated power. And all that other stuff is no good. And the enumerated powers, that's all." Because the Court is dealing with the fact that it hasn't always talked that way. And a more insistent enumerationist view would say we have to not rest on the traditional ways of understanding these powers that existed at some previous time.
In the era of cumulative coverage since The New Deal, we haven't needed—Congress hasn't needed implied powers, because if the list gets you everything, then the list gets you everything. The advantage of the model of cumulative coverage—well, it has a couple. The first is it's more continuous with what we're already doing. And the second is to the extent that the enumerated powers practice that, say, the practice of pointing to specific enumerated powers is useful because it's a way of trying to remind ourselves that Congress has to be disciplined by constitutional law, that congressional law requires some mandate in the Constitution. We go through the exercise of justifying congressional law in some way. And that might be a healthy thing to do in a constitutional system that values the rule of law.
And it might also be the case to the extent that you think that particular federal law is good and should be respected, associating with the Constitution may be helpful in that way also. Those are all possible upsides of the model of cumulative coverage. The upside of the model of implied powers, I think, is that it's more honest, or at least it's more straightforward. Law students wrinkle their noses the first time you show them Wickard v. Filburn. And then some of them come to accept logic and say, “Yeah, that actually makes sense.” And some of them say, “No, it doesn't make sense.” And someone says, “Yeah, it makes sense, but it's the long way around the barn. There's got to be an easier way to do this." The model of implied powers I think gets you more straightforwardly to the places where it makes sense to go. It's more forthright, it gives more direct reasons why Congress should do things, and that's why I think it's better. But I don't think that in practice anyone should go to war over getting there rather than cumulative coverage.
Will: So just clarify one thing. So, on the implied powers model, is this the same or different from something else that's not on the list, which would just be get rid of the Step 1 inquiry. One view would just be there is no enumerated power. Because you could think anytime there is a power, we will say it's an implied power. So, it's not really an inquiry. Or you could say, “No, you got to show us it's Native Americans or something.” So, yeah.
Richard: So, my view of the first best scenario actually is that you do need a step one inquiry.
Will: Okay.
Richard: Right. So, I believe in federalism. I think that federalism-- I probably should have said this much earlier in the podcast. I believe in federalism. I think that it's enormously important to have a well-reasoned division of responsibility between central and local authorities. I think that's a good thing for like all kinds of reasons that are easy to identify. The hard questions are about what should be decided where. But I absolutely do not think that everything should be decided centrally. That would be a much worse system than the system that we have.
I think the enumerated powers are a bad guide to what should be decided locally. I think the enumerated powers weren't written as a way of implicitly by negative inference picking out what should be decided locally. And we make a mistake when we press them into service for that function. But I do think that it makes sense to say there are some things that should be decided centrally and there are some things that should be decided locally. And I think it makes sense in our system to say before we do something nationally, let's see that we have a reasonable reason for doing it nationally.
I think that the enumerated powers preempt that question as a matter of constitutional authority over the domains where they apply. That doesn't necessarily mean that it makes sense to do the stuff, but it means that if Congress decides to do the stuff, no one can complain about it as a constitutional matter. There's a lot of stuff that's within the enumerated powers that I don't think should be done nationally. I just think that the set of reasons that can be sufficient for deciding that something should be legislative nationally is not exhausted by the text of the enumerated powers. So, when you ask the question, “Well, why should Congress have the authority to do this?” One set of answers is, “Well, because it says so right here." But there are also other possible answers.
Dan: So, just to understand how this is going to work in practice, basically you would say, “Okay, is it enumerated, Congress can definitely do it.” “Is it not enumerated, Congress can maybe do it.” And then answering the maybe question is a common law process relying on precedent, relying on common sense judgments by Supreme Court Justices?
Richard: I think that's right. I mean, using common law process to mean what it's a shorthand for in the Kant theory conversation. Yeah, we have case law, we have ideas about a constitutional structure, we have ideas about traditional practice. Judges try to identify coherences, not just judges. But in the best-case scenario, legislators also, in deciding whether to do something, and then judges also, it's more or less heroic assumption in either case, think about those considerations and reach their best judgments with appropriate electoral modesty about what the answer to that question is.
Dan: So, in terms of maybe diagnosing what I imagine you might think is wrong with the Court today, or at least some of the Justices today, to stick with, I like the religious metaphors you've used. Is the problem with someone like Justice Gorsuch or Thomas a form of fundamentalism? It's a literal fundamentalism that they're just reading these things that we say all the time and everybody should know we don't totally take it seriously. And they're taking it too seriously?
Richard: I think so. I mean, I think there are many ways of describing it, but I think that's one way of capturing something that's important that's going on. I love teaching United States v. Lopez for many reasons, including that it has multiple different perspectives on this question. And one of the wonderful things about Lopez as a teaching tool on exactly the point that you're raising is the contrast between the way it starts and the way it ends. So, Lopez begins with the opinion by the Chief Justice for the court. He's going to reach the conclusion that the statute is beyond the enumerated powers. And he opens by saying, “We start with first principles. The Constitution creates a federal government of enumerated powers.”
We start with first principles is the language of fundamentalism. Fundamentalism is here used in a non-pejorative sense. It's like that's what it is, the fundamentals. We recur to a certain set of axioms. The opinions end with Justice Breyer's dissent, where he wraps up by saying that what the Court has done discards the traditional interpretation of the Commerce Clause. Where tradition doesn't mean first principles. Tradition means what we did yesterday and the day before that and the day before that. And the tension here, which is a running tension in our legal culture, in a lot of religious cultures with which I'm familiar and so forth, is the tension between fundamentalism and traditionalism, which are two different ways of thinking about the authority of the past. One where the correct way to do things is the way that things were done or planned to be done at time zero. And if we deviate from that, it's error. Not to be corrected by recurring to first principles.
And the other perspective is a perspective that says we're not trying to recapture time zero. We're trying to maintain continuity with an accumulated practical wisdom that has given us the system that we have and that we adapt as we go. That's a fundamental tension. I mean, it's Martin Luther and the Catholic Church. There are a bunch of other ways of thinking about it. It's most strains of originalism against most strains of common law constitutionalism, and it's at play here.
Dan: So, I was going to ask Will, do you think that characterization of the first view, when Richard said that, were you kind of saying, “Yeah, that sounds right,” or are you going to push back on that and say that the truth is somewhere in between?
Will: No, I like that. It's one of the best and also most frustrating things about Richard's book is how persistently reasonable it is. [Dan laughs] So, when I started reading it, I kept wanting to vituperatively disagree, but the nature of the argument, because it's not an argument for abolishing all the enumerated powers, and it's not quite-- and it's trying to stitch these things together. So, I find this one of the things that's, I mean, it's good obviously to be frustrated by this when you're looking for a fight and somebody refuses to fight with you. But I guess I do wonder if I try to step back and say, “But in my hearts, I think, what's so bad about fundamental enumeration-ism taken seriously? What would be so bad about Justice Gorsuch getting to strike down a bunch of the federal criminal laws and maybe the Native Species Act as collateral damage?”
As it happens, I'm okay with a little bit of implied powers, because I do think that there is some unwritten law in the world and probably even some unwritten powers, but they wouldn't be very many, and there wouldn't necessarily be as many as the court thought in the early 20th century. But I do still find myself wondering what would be so bad about taking the-- [crosstalk]
Richard: Yeah. So, I feel like it's a question that invites answers at two different levels of generality. One, a more specific level where I could point to particular federal regulatory schemes whose disappearance would be unfortunate and say, “Well, we wouldn't have this and we wouldn't have this, and we wouldn’t have this.” And I'm happy to do that. But of course, we would face the problem that we would disagree about the desirability of the disappearance of those federal regulatory schemes, or at least sometimes we would. I think the Affordable Care Act is a very good thing. I think there's much about that view that you don't share. And so, we don't get very far right in pointing to that.
Will: Yeah, it's the problem of constitutional law. [chuckles]
Richard: But at the other level of generality, I think it goes something like this. I believe in democratically responsive governance, and I think it's important. I think the world needs active governance because it's big and complicated and dangerous. And I'm keenly aware that government done badly can make all that much worse. But I also don't think that doing not very much government is an acceptable solution, because I think there are social conditions that we can imagine that maybe have existed at various times and places where that's a more viable solution. But given the facts and complexity of society as we now inhabit it, I think we need a fair amount of active government in order to maintain basic human flourishing. And I think that it's a sociological reality that the place where the focus is for Americans on that responsive is mostly national.
I think it's an empirical reality that there are lots of such things that can be addressed better nationally than locally. And I have a fear, in part because of things that I suspect about the fallibility of judges, that what will happen in practice if we have a judiciary that wants the enumerated powers limitation idea to really have teeth is not that judges will succeed in sorting between things that Congress may do and things that Congress may not do on the basis of some sound assignment of responsibilities to national and local decision makers, but they will do so largely on the basis of their intuitions, let's posit sincerely held intuitions, about what's better and worse policy. And I don't want them doing that. That, I think, is the cost and then at maybe one level of abstraction up from that. And here again, I think, like, I see this as a cost. You might not. It's a difference in perspective. There's a question of the moral of the story.
This is one respect in which I think we are better off without the official story than with it, even though before I said I'd keep the official story if you let me keep the practice. The moral of the story of enumeration-ism is, be skeptical of national governance. The framers were skeptical, and for good reason and that skepticism is an essential part of what's wise about our Constitution. And I think it's important to be skeptical about all governance. I think you got to watch power and you got to guard against abuses and so on and so forth. But I would like a story that says, at the same time, the moral of the story of the making of the Constitution is an expression of confidence in the capacity of the American people to do big, necessary, important things through the vehicle of national democracy. I like that story, and I think that's a necessary story for 21st century American life.
Will: Mm-hmm.
Dan: So, just to be clear, how much work are those priors you have about active government doing explicitly in how you think we should choose between these different visions?
Richard: Yeah. I mean, I think it's probably doing a considerable amount of work, by which I mean, the more someone shares that intuition, the more likely they're going to be willing to climb on board with the story that I'm telling about enumeration. The more someone is committed to the other story. And I think you can tell both stories, but the more that someone's balance tips toward the other story, the less willing they're going to be. And I think that we could have an argument about which is the better story to tell. That would be an argument about what we think is the greater set of needs for how Americans should think about government. That's an important conversation in which I have no particular reason to think that my own view is infallible. I just happened right now to think that it's the best view, I know. I do think that it's important that part of what we are fighting about, when we fight about things like enumerated powers, is which story do we get to tell. What's the official story of American constitutional law with which the next generation of lawyers is socialized? That's a big piece of the game.
Will: Mm-hmm. I’m obviously very sympathetic to the concern about judicial discretion or judicial judgment calls working out in not a very legalistic way. So, this is to me one of the best reasons to avoid reviving the enumerated powers doctrine is this fear. I do wonder, I have not thought about this at all so, I'm just doing this on the fly. If you look at the court's enumeration decisions, I don't know since Lopez, it's kind of a funny mix. Like it's not obvious to me where Lopez is in policy concerns. It's not obvious to me whether we think of that as a gun case so conservatives like the result in Lopez, or we think of it as a crime case so they don't. They saved ultimately, thanks to judicious Roberts, they saved the Affordable Care Act, even though I imagine they may not have liked it. At the same time, they strike down RFRA, which I imagine a lot of them did like. I mean, maybe this is your point is that the current equilibrium has not resulted in a results oriented, but it's puzzling.
Richard: Well, I don't think that there's been any tremendous damage yet. I mean the most damaging thing so far is the civil remedy in VAWA and we'd have to do some empirical work to figure out how consequential that has been. I think that it would have been a very big deal to strike down the Affordable Care Act. And I think that very nearly happened. And I think the court today is considerably more enumerationist than it was when that case was decided. Yeah, that's I guess what I would say.
Will: Is that the origin story—is that sort of like seeing the Affordable Care Act almost get struck down is what made you realize this book was necessary?
Richard: I think that's actually a very big part of the origin story. I think the more complete version is I always used to open my intro con law class by asking students if Congress could prescribe what they ate for breakfast. And then 10 years into my career, members of Congress started asking the broccoli hypothetical [Will and Dan laughs] as part of the debates over the ACA. And I thought, well, this is the question I've been asking. And by that time, I had come to think that there were a bunch of problems in the normal enumerated power story. And while NFIB v. Sebelius was pending, I wrote the first little thing that I ever wrote about enumerated powers, which was a little online thing in the Michigan Law Review online edition called I think How the Gun Free School Zones Act saved the Affordable Care Act or something like that. Where what I argued was, this was before the NFIB was decided. And I was thinking of NFIB as an easy case for upholding the statute. And my thought was, because we have an official story, the court needs to be able to look itself in the mirror and, without cracking up, say the federal government is a government limited by its enumerated powers.
Will: Yeah.
Richard: And they decided Lopez the way they did, because they couldn't take themselves seriously saying that if they hadn't decided Lopez the way they did, because they asked the Solicitor General to give them a way that they could continue to look themselves in the mirror and take themselves seriously if they upheld that statute and he couldn't do it. And so, they had to strike it down, but that having struck it down, they didn't have to do it again. They had demonstrated that there's a reality to it. So, now they can uphold the statute that matters. And once I wrote that first thing, and then what happened in NFIB happened, where the statute came closer to invalidation than I had predicted it would, that set me on the path of writing a more serious article about this. And that article set me on the path of writing the book.
Will: Yeah. I play this part from the oral argument in Lopez in constitutional law, when I teach this. I tell students, this is when Drew Days couldn't give answer to what is there that Congress can do, this is the problem. And then I tell them something similar. Actually, I'd say, “the funny thing is, ever since Lopez, the Solicitor General always gets to say, "Oh, we have an example, the Gun-Free School Zones Act-- [crosstalk]
Richard: That's right.
Will: -which is giving away nothing.'"
Richard: That's right.
Will: And so, it's convenient to really give it away.
Richard: That's right. It's ritualistic.
Will: Right. So, Justice Scalia, I think I talked about this when we talked about the non-delegation doctrine in an earlier episode. But Justice Scalia had this article in Regulation magazine about the non-delegation doctrine where he says something similar. He said, “Intelligible principle is a really important principle. It's one of the things we've always got to say. At the same time, it would be a mistake for Congress—for the Supreme Court to go around actually striking down all the delegations that violate the intelligible principle.” So, they ought to strike down one, just one.
Richard: For the in terrorem effect
Will: Yeah. That'll sharpen everybody's mind. That reinvigorates the principle. But stop at one and so maybe it too is a-- [crosstalk].
Richard: Yeah, I mean, it's clever, right we smile. As with all of these things, it works only if it's not openly acknowledged as doing the work that it's doing. That's part of the tension or if everybody's in on the joke together. And as long as everyone's in on the joke together, I think we're probably fine. The problem is that we're not all in on the joke together. That people have quite different views about how aggressively courts should police the legislative jurisdiction of Congress. And it's in that context that the need for something like clarity arises.
Will: Yeah. Can I take one more run at being a skeptic from an originalist perspective?
Richard: Sure.
Will: And this is tricky because I know that the book, as you talked about, the book talks about text, history, and structure, but ultimately you don't want to rise or fall on just sort of like, what is the best original understanding of Constitution.
Richard: No. And I try to be very clear in the book that I don't claim that the history, as I render it, establishes my view as authoritative law. My claim about the history is it problematizes the official story of what the law is.
Will: But if I were an originalist, might I still have to reject your view? So, I guess the version I think about is, one big question for all the confusion at the drafting about the nature of the list and whether James Wilson is right. But one big question everybody had was, is this new government going to have the power to ban slavery? And it seems like everybody thought the answer was no, that the slave states joined onto and cooperated with the system only because they were confident the answer was no, that even the free states would give the answer no. Ben Franklin, who immediately sends a pretty aggressive petition to Congress to try to get them to use all their powers to do various things to slavery, even he doesn't push the answer yes.
So, if that's something that Congress can't do despite the absence of any clause saying Congress can't abolish slavery, then don't we know we have a government of enumerated powers.
Richard: So, I think the answer is no. And I noticed this claim in your recent essay with Steve Sachs in the Yale Journal of Law & Humanities, like it's a by the by right thing. And let me see if I can give us a somewhat layered account of why I think that. That the first is, I agree with you that the Southern states have the view that if this Constitution was going to empower Congress to mess with slavery, it would be unacceptable, or at least most of them do. There's very interesting, Edmund Randolph's last speech to the Virginia Convention is one that I read to say, “Look, I recognize that, if this is the Constitution, there are some risks going forward about how powerful Congress might become. And I wish there weren't, and I see there are, but I'm voting for it anyway because I think that's the risk we have to take."
Will: He could be worrying about the risk of Richard Primus as arising rather than the risk of you being right.
Richard: Yeah, well, it could be. It could be. But it's also a recognition that the way constitutional government actually works is decisions are going to be made by people in the future and not based on us now, right?
Will: Yeah.
Richard: And also, I want to complicate your story a little bit. I think that some of the things that Southerners like Pinckney and the South Carolina Convention say about slavery being beyond Congress are less descriptive diagnoses of what the Constitution provides than they are like talking point bids, both to bring South Carolina on board and to establish for the nation that that should be the correct reading. And there are Northern Federalists, including Wilson sometimes who pitch the Constitution to certain audiences in the north on the grounds that it will permit the abolition of slavery. But even if, after all of those complications, we come out with the idea that there is a relatively widely shared understanding at the Founding that Congress can't mess with slavery, which I think is fair, that doesn't demonstrate that Congress can only do what's on the list. That just demonstrates that in addition to there being unenumerated powers, there are also unenumerated prohibitions and that messing with slavery is one of them. That doesn't tell us that there's nothing that Congress can do that's not within the enumerated powers.
Will: Okay. But then we do have the world where somebody, maybe it's the Supreme Court, gets to strike down some laws on the grounds that they're not on the list of things that the Court has to uphold. And they want to strike them down.
Richard: Yes. And I think that this is, I think, a fair place to push me because it's in tension, or might be in tension with my saying that I don't want the Court striking things down when it doesn't have to and that's part of the costs of taking enumeration seriously, because it's not my view that the Court should only strike down legislation on federalism grounds when there's a clear textual constitutional prohibition at issue. So, for example, I'm not sure the anti-commandeering cases are wrong, but I don't think they're textual. I think that the best way to understand the anti-commandeering doctrine is as a non-textual federalism rule. And I'm not sure that all of the anti-commandeering—I don't think that the explanations that are given in all the anti-commandeering cases are right. I think some of them are quite wrong. But I'm not sure that the results are all wrong. I'm not sure that there is no anti commandeering doctrine validly enforced.
And there's a judicially enforced prohibition on the federal government taxing a state's own tax revenue that I can't trace anything in particular in the text that I think is like probably a good constitutional rule the courts should be able to enforce. So, it's not my view that the prohibitions should only be textual and that means, “Well, Primus, you're admitting the possibility of some judicial subjectivity there and so forth,” and yeah, that's right. Like it's not an all or nothing thing. I'm not a Thayerian about this. I would like to reduce the exposure, but it's not that I think that there are no non-textual federalism principles that courts can be in the business of enforcing.
Will: I mean, so can you imagine the Justices you're worried about now read your book and say, “Look, Primus, it's going to be federalism doctrine one way or another, but I'm going to be on the Supreme Court one way or another. So do you want me to do it in a textualist way where you kind of know what the moving parts are and what I'm going to cite, or do you want to take your chances?”
Richard: Yeah. So, I think the answer I would give is like if you're asking me the realistic question, I'm taking my chances either way, however we characterize it. And the reason that I prefer something like a non-textual anti-commandeering doctrine to an ostensibly textual enumerationist rationale is that I think it gets at the real reasons why we might want Congress not to do something. I think the idea that the enumerationist text, the textual enumerated powers is the guide, requires me to think that that list was written or serves well as a tool for implying what should be done locally. And I don't think that's what guided the writing of the list. And I don't think the list works all that well as a statement of what we prioritize for the local.
I think the anti-commandeering doctrine has the virtue of getting directly at something which to the extent that it's cogent, makes sense in a federal system. And to the extent that the prohibitions map like real substantive things about federalism rather than things that accidentally fall outside a list that was written for other purposes, strikes me as a better way of making decisions.
Dan: Just one smaller question. There seemed to be a little bit of a tension at points where sometimes you say enumeration-ism is actually just not a good way to limit federal power and point to examples of how it hasn't really done that. But then you also seem to be quite concerned about enumeration-ism as something that would dramatically limit federal power. Is the problem just that there are people like Gorsuch and Thomas who are saying true enumeration-ism has never been tried and we've got to really take it seriously?
Richard: Yeah. So, I mean, it's at two levels. The first is enumeration hasn't done much in practice to limit power in past because we've had either implied powers or comprehensive coverage. It's not that I don't think that enumeration could be deployed to limit federal power in bad ways. I think it can. But I think that if it were deployed, it would be deployed arbitrarily with respect to good federalism. If I thought that it could be deployed in a way that would actually do a good job of sorting, then we'd be having a different conversation and that would be more plausible if I thought that that's what the list of powers was actually written for or happens to be good for in our world. Of course, it can be deployed to strike down great big federal statutes. Of course it can. My worry is just that if it is, it won't do a good job of deciding which are the ones that ought for federalism reasons to be struck down.
Will: You said at the beginning that you do this parlor game sometimes with your students where you ask them how many enumerated powers are in the Constitution.
Richard: Yeah.
Will: Do you have a number? I was going through it when you said this. I came up, I was trying to figure out what the number is.
Richard: So, somewhere in the book we could probably find it. I report the results of a non-scientific study.
Dan: I think it was 46 is maybe the number that's sticking in my head from the book.
Richard: Yeah. There was one student who gave me a number well in excess of 100 of how many powers Congress has given the Constitution. When I've done it, I've said count powers that are vested in the federal government or in Congress. Don't count powers that are only internal to the operation of the federal government. So, impeachment doesn't count. Only powers that are given—that can affect the outside world. And I think Dan is in the ballpark. I did this with like, I don't know, 120, 130 students one year when I was teaching a bunch of con law classes. And I think my median response was somewhere in the high 40s of powers, which always makes me chuckle when I remember James Madison's claim that the powers of the federal government are few and defined. Because I think that if he had written few and defined, and there are only 47 of them, it would have seemed awkward.
[laughter]
Will: Well, some of them were the amendments they hadn't enacted yet.
Richard: Well, I think I asked them to do it with just the original Constitution. [crosstalk] But be that as it may.
Will: Yeah, yeah, right. Okay. I found 32 in the original Constitution, and I was trying to get to ballpark since I'm a little stingy but maybe that's about what you expect.
Richard: Yeah. And maybe your account is better than the account of the people who are bringing it higher.
Will: Yeah. I don't know. I mean, that's one of the risks.
Dan: Were you doing that just in your head right now, Will? Or you did this at an earlier point?
Will: At an earlier point.
Dan: Okay, good. I didn't think your processing power was quite that impressive.
Will: The Constitution's not that long. A bunch of provisions are inapplicable, and you got some stuck in there. Like Congress can regulate elections. The Article 1, Section 4 elections clause, people forgot about that. And then in Article 1, Section 4, they can regulate the times, places, and manners of choosing members of Congress. That's one. But then also, the Congress shall assemble at least once in every year, and such a meeting shall be on the first Monday in December unless they shall by law, appoint a different day. So, it's the power to appoint a different day for meeting, maybe that's the internal one.
Richard: By my criteria, it doesn't count because it's one of the internal ones. But is the power to lay and collect taxes one or two? [crosstalk]
Will: That's a big one.
Richard: I mean, there are lots of places where different people could produce different numbers. I think it's really hard to produce a number that's less than a couple of dozen.
Will: Right.
Richard: But different people get different answers.
Will: One is the power to provide for the common defense of general welfare, a power or is it just a condition on the power to lay and collect taxes, a famous question.
Richard: Yes. And if it's a power, is it two powers?
Will: Yeah. And it's lay and collect taxes, duties, imposts, and excise is actually 8 powers because it's lay and collect 2 times 4.
Richard: I'm sure that the student who told me there were 128 powers, I'm not sure. I bet. Counted that as 8 powers.
Will: Yeah, that's plausible. [laughs] I mean, it would require you to know what the difference was between attacks, duty, impost, and excise, which, to this day I don't, but--
Richard: That's right. Yeah, that's right. But part of the usefulness of the exercise is in pointing out that the Constitution doesn't really have a sharp-edged catalog of numbered powers.
Will: Yes.
Richard: And talk of enumerated powers sometimes makes us think of it that way. And it's actually more fluid than that.
Will: Yes.
Dan: I think this is my last one, one question just about your attitude towards constitutional text. Because there are a few points I found kind of refreshing where there's the tendency of some people who are at least friends of Will to be very, very focused on the individual word choices in the Constitution and think everything must be there for a reason. And in the book, you're more willing to say, “Well, maybe, but maybe let's just look at the drafting history. Maybe this is just how we ended up with this language and we shouldn't take it too seriously.” What's the underlying kind of theory of constitutional text that you take?
Richard: I mean, we might need another hour-
[laughter]
-But I love close reading of text and I think it's an indispensable skill for the constitutional lawyer. And a certain amount of my skepticism of pure textualism, whatever that might mean as a method of constitutional adjudication, is a product of my taking seriously the close reading of text. Because I think that there are a lot of things that pass for textual arguments and textual conclusions that only stand up if you're not actually carefully reading the text closely. And I think that the more seriously you take the text in a close reading way, the more it turns out often that that is not going to produce the rule that people agree is the constitutional rule.
It's that thought process that led me to my view that there's got to be a lot by way of inputs into constitutional meaning and doctrinally correct answers other than the text. Which is to say, I come to my view of constitutional interpretation not as someone who doesn't like text. But as someone who loves it and walked through the textual door and said, “Wait a minute. Like, if you take text seriously, it must be the case that more than text is going on." That's my perspective as a teacher and as a lawyer and as an American and all sorts of other things. And I think that it's super interesting to think about how we read the text and what we think the text means and what we can do with the text and what we can do without the text. But my attitude is to take the text very seriously and to recognize that taking the text seriously is sometimes a reason to recognize the limits rather than just the force of what is called textual interpretation.
Dan: Will, any parting shots?
Will: [laughs] No. It's a great book. People should read it.
Dan: Yeah.
Richard: Well, guys, thanks so much for having me. This has been totally fun.
Dan: Thanks for coming on.
Will: Yes.
Dan: We really do commend the book to our listeners. The Oldest Constitutional Question: Enumeration and Federal Power, published by Harvard University Press. I tend to not say available everywhere where books are sold because academic books are often not, but it is available everywhere books are sold online. And despite being 370 pages and very learned and sophisticated and going through lots and lots of evidence, it really manages to be quite readable and a pleasure to read. So, anyone who found this conversation illuminating should check it out.
Richard: Well, thanks so much, guys. This was fun.
Will: It was. Thank you for doing it.
Dan: It was great.
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. I think this makes this our longest season ever.
Dan: It's a new record. So please rate and review the show wherever you get your podcasts. Go to our website dividedargument.com for transcripts, blog.dividedargument.com for commentary from us in the larger Divided Argument universe, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com, leave us a voicemail 314-649-3790. And if there's a long delay between this and our next episode, it will be because Will has not yet recovered from the intense cognitive dissonance that reading Richard Primus' book has caused him.
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