This chapter explores the enumeration of national legislative powers as a cornerstone of the U.S. Constitution’s compound republic, arguing that it both empowers and limits Congress to specific domains while also curbing executive authority. Despite the Constitutional Convention’s initial rejection of enumerated powers in favor of broad legislative authority over matters where states were incompetent, the Committee of Detail enumerated powers so that it could assign historically royal prerogatives, like war and commerce, to the legislature. The chapter highlights Federalist assertions, from Madison to Wilson, that Congress is confined to these enumerated powers, reinforced by the Tenth Amendment and debates over a bill of rights, which Federalists deemed unnecessary due to limited national authority. It critiques revisionist claims that Congress was not strictly bound by enumeration, finding them unpersuasive. The enumeration, the chapter concludes, ensures a balanced federal system, aligning with the Framers’ intent to create a government competent for national purposes while preserving state sovereignty and minimizing the risk of executive tyranny.

The Introduction begins with a short paragraph of conventional views about the Declaration, drawn from legal and historical writings, and argues that everything in this paragraph is wrong. It argues that when we get the Declaration wrong, we get America wrong, and we need to get America right. It then provides an overview of the major themes of the book.

This chapter considers the conflicting views on whether the Declaration of Independence is law. It sets forth the arguments on either side, ultimately concluding that neither side is completely persuasive. It argues that the Declaration was a legal document of continuing legal significance, even if it is not directly controlling law in the sense of a modern statute. It then sets forth the numerous ways in which American courts have relied on the Declaration, in cases ranging from citizenship to states’ admission to the union to the interpretation of provisions in the federal constitution.

Although the liberty and equality language of the Declaration was probably not the most important part of the document in 1776, it has come to be that today.

This chapter examines presidential emergency powers and the framework for analyzing separation of powers disputes between Congress and the President. It argues that the Constitution grants no inherent authority for the President to act beyond or against statutory law in crises. Analyzing the Steel Seizure Case (1952), where the Supreme Court rejected Truman’s unauthorized steel mill seizure, it critiques Justice Jackson’s tripartite framework, particularly its vague “twilight zone” of congressional silence, as conceptually muddled. It proposes a formalist framework: presidential power is limited to executing Congress’s laws or acting within enumerated presidential authorities, but Congress and the President have some overlapping or concurrent powers. The chapter then rejects claims to emergency powers, arguing that historical examples like Lincoln’s habeas corpus suspension were extraconstitutional actions that may have been justified but were not legal, requiring public or legislative indemnity. This originalist approach, opposing functionalist expansions of an “imperial presidency,” advocates a restrained presidency faithful to the law-execution role that the Vesting and Take Care Clauses assign to the chief executive.

This chapter analyzes the Necessary and Proper Clause, arguing it grants Congress incidental, not great and substantive, powers to effectuate its enumerated powers and those of the other government branches, reinforcing the Constitution’s limited government framework. It examines the 1791 debate over the national bank, where Madison, Jefferson, Randolph, Hamilton, and later Chief Justice Marshall in McCulloch v. Maryland (1819) agreed the clause authorizes only lesser, implied powers necessary for executing express powers, not broad authority to regulate for the general welfare. Unlike the Articles of Confederation, which limited the confederated government to powers “expressly delegated," the clause empowers Congress to exercise implied powers while avoiding an exhaustive enumeration unsuitable for a constitution. The chapter refutes revisionist claims that the clause implements the Virginia Plan’s proposal for a general grant of legislative authority, finding such arguments speculative and inconsistent with historical evidence. It argues that the clause’s “sweeping” nature captures minor details, not major powers, ensuring Congress’s authority remains tethered to enumerated powers and preserving the balance of the compound republic.

This chapter explains how revolutionary Americans understood what had happened in 1776. There is ample evidence showing that they viewed the Declaration as creating one nation, at least with respect to the world. The United States of America was regularly spoken of as a nation and was treated as a nation with respect to issues such as foreign relations and citizenship. The Continental Congress had little hesitation in reversing the decisions of state courts. A functioning confederacy, recognized as such, long predated the Articles of Confederation. The chapter concludes with the case of North Carolina and Rhode Island and argues that they were never formally outside of the United States, even during the period in which they had failed to ratify the US Constitution.

This chapter explores Article III’s enigmatic structure – establishing one Supreme Court, optional inferior courts, and limited original jurisdiction – which is amenable to competing interpretations and lends itself to competing conceptions of the judicial role in a system of separated powers. Despite scholarly disagreements over the details of this structure, judicial review is an inherent feature of judicial power under a written constitution. The chapter argues that judicial review, affirmed in Marbury v. Madison (1803), follows from conflict-of-laws principles, with unanimous Founding-era support from figures like Hamilton and Iredell. The chapter refutes claims that Chief Justice Marshall invented judicial review, emphasizing its roots in the Constitution’s text and the Framers’ expectations. However, it challenges judicial supremacy, suggesting courts were not intended as final arbiters of constitutional meaning, a theme explored further in subsequent chapters on Dred Scott and departmentalism. By comparing Article III with Articles I and II, the chapter clarifies the judiciary’s role within the separation of powers, arguing that its structure supports a balanced, not dominant, judicial branch.

This chapter examines the distribution of foreign affairs powers, arguing that the Constitution’s text sufficiently allocates authority between Congress and the President without requiring unenumerated or inherent presidential powers. It rejects both formalist claims of a residual executive power and functionalist assertions of necessity-driven authority, asserting that the President’s powers, such as appointing ambassadors and treatymaking, cover essential functions like managing international relations. Historical episodes, including Washington’s Neutrality Proclamation and the Monroe Doctrine, illustrate that presidential actions rely on enumerated powers, not a broad policy-setting prerogative. The chapter argues the President does not have unilateral or exclusive authority to recognize foreign governments or to terminate treaties. Treaties are necessary for long-term international obligations and to bind state courts under Article VI, but executive agreements are constitutional if Congress has delegated the relevant authority to the President. While Congress holds most foreign affairs powers, the President’s role is robust but constrained by the Constitution’s formal structure. This formalist approach ensures a balanced separation of powers in foreign affairs.

This chapter defends the nondelegation doctrine, arguing that the Constitution’s text, structure, and history prohibit Congress from delegating legislative power to the President or subordinate agencies. Textually, the Vesting Clause is an exclusive grant of legislative power to Congress and the Constitution omits any clause permitting delegation. Structurally, each branch is institutionally designed to performs its function effectively, a design disrupted if Congress cedes lawmaking authority to the executive. Historically, Madison’s warnings against power accumulation and other early statutes, discussions, and adjudications align with an “intelligible principle” or “important subjects” test, which refutes revisionist claims of broad delegations. The chapter critiques the Supreme Court’s lenient modern standard for upholding vague delegations, and proposes a reinvigorated doctrine requiring Congress to set major policies, preserving its deliberative function and preventing executive overreach.

This chapter examines the compound republic established by the U.S. Constitution, emphasizing its innovative balance of national and state powers. Unlike the Articles of Confederation’s league of states, the Constitution was ratified by the people, not state legislatures, and thereby creates a national government with direct authority over individuals, but only within its assigned sphere. This “new science of politics,” as Hamilton termed it, departs from Montesquieu’s view that republics suit only small territories, enabling a robust union capable of addressing external threats and internal defects such as the ineffective taxation and defense under the Articles. Madison’s writings in The Federalist highlight the Constitution’s blend of national and federal elements, ensuring legitimacy through popular sovereignty while preserving state autonomy in areas outside the enumerated powers. The chapter explores the Webster-Hayne Debate and Jackson’s response to South Carolina’s tariff nullification to refute secession and nullification and reaffirm the Constitution’s supremacy, while acknowledging states’ roles in “interposition,” as in the 1798 Virginia and Kentucky Resolutions, to alert citizens to potential federal overreach.

We are sometimes told that the Declaration is an airy statement about individual rights, whereas the Constitution does the hard work of structuring a government. This Part argues that the Declaration is primarily concerned, not with individual rights, but with the structure of government. That is, how do we structure a government so that our rights are most reliably protected? And the answer is not as little government as possible, but a competently structured government, subject to the rule of law, that works for the benefit of the people.