The Gibbons Fallacy

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 Constitution’s 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, and nothing in his analysis purported to limit what Congress can do. Modern courts and commentators systematically misread Marshall on this point and in so doing lend unjustified credence to one of the central misconceptions of constitutional doctrine: that the enumerated powers of Congress must in practice authorize less legislation than a grant of general legislative authority would. Properly understood, Marshall’s statement about enumeration does not support that idea.