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Divided Argument

Bedrock Con Law 101

Divided Argument

Will Baude & Dan Epps

Politics, Government, Justice, Legal, Supreme Court, News, Law

4.8766 Ratings

🗓️ 29 August 2025

⏱️ 67 minutes

🧾️ Download transcript

Summary

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.

Transcript

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0:00.0

Oh, yay. Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court.

0:08.1

Unless there is any more question to be able to find an argument in this case.

0:10.9

All persons having business before the Honorable, the Supreme Court of the United States, are in honorous to give their attention.

0:20.1

Welcome to Divided Argument, an unscheduled, unpredictable,

0:23.4

Supreme Court podcast. I'm Dan Apps.

0:25.6

And I'm well-vode.

0:27.5

So, Will, there's been a few things going on in Supreme Court shadow docket world,

0:32.9

and we're going to talk about zero of them today, because as we sometimes do during the dog days of August,

0:40.5

we're going to have a change of pace, and we're going to do one of our book episodes.

0:45.5

So we are joined today by Professor Richard Primus of the University of Michigan Law School,

0:50.9

who is going to talk with us about his new book, the oldest constitutional

0:55.3

question, enumeration, and federal power. So this is a really, really fascinating book of constitutional

1:01.1

history and theory. So Richard, you know, maybe we could just kick it off by having you tell our

1:07.0

listeners the basic gist of what the book is about, and then Will and I can

1:10.9

better run some questions. Sure. And thanks to both of you for having me. I really like the podcast,

1:16.6

and it's delightful to be here with you guys. So this book is about one of the core ideas of

1:25.0

constitutional law, which is the idea that the federal government is a government

1:29.2

of enumerated powers, right? Anyone who has taken an intro class in constitutional law has been taught

1:34.7

this principle. If you walk into a cocktail party full of constitutional lawyers and say, well,

1:40.9

the federal government is a government of enumerated powers. Everyone will sort of nod their

1:44.4

heads along, right? What the proposition means is that Congress faces a different default rule

1:52.8

in legislation than the default rule that state legislatures face, right? A state legislature,

...

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