Document Type
Article
Publication Date
3-2017
Abstract
In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated powers of Congress must in practice authorize less legislation than a grant of general legislative authority would.
Recommended Citation
Primus, Richard A. "The Gibbons Fallacy." U of Pa. J. of Const. L. 19, no. 3 (2017): 567-620.