Professor Richard Primus (Michigan Law) presented an interesting draft paper here at Vanderbilt and his take on the life of John Marshall’s opinion on enumeration in Gibbons v. Ogden: “The enumeration presupposes something not enumerated.” In modern law, that famous dictum has been interpreted to mean that because Congress’s powers are enumerated, they are also limited. Congress has only the powers expressly granted to it, and not those powers that remained unenumerated. In fact, however, as Primus convincingly demonstrates, Marshall was referring to a much narrower example of enumeration in the Constitution: the Commerce Clause and its enumeration of commerce “with foreign nations, and among the several states, and with the Indian tribes.” Since United States v. Lopez in 1990, Marshall’s dictum is used to support the claim that all of Congress’s enumerated powers are limited or constrained by the enumerations (Article 1, 10th Amendment). This shift from a dictum which on its face applied only to the Commerce Clause to a fundamental principle of constitutional law is most definitely worthy of exploration. I only offer a brief comment with trademark law in mind, a matter to which I return at the end of this short text.
An enumeration can be analyzed as a matter of linguistics. Some are necessarily exhaustive, some necessarily not, others may be. Sometimes the text of the enumeration will make that clear; sometimes context is required. Examples:
“I want you to bring these 10 things [insert list] on your trip.” This list is not necessarily exhaustive. Some could potentially be able to travel with only 10 things. The traveler may well take many other things with her, however–there is no question that there exist other “things” in the world other than the 10 listed.
“I want you to bring those 10 things [insert list] and only those ten things on your trip,” would be an example of the same enumeration but expressed as exhaustive. A person getting ready to climb a mountain might be asked to keep it light.
“I want you to bring an extra pair of socks and some toothpaste on your trip” is contextually non exhaustive, as a naked person with socks and a tube of toothpaste in her hand is an unlikely traveler. Even if we consider the traveler fully clothed before receiving the instructions (ie the instructions apply to objects that will be carried in addition to what she is wearing), the instructions definitely seem non exhaustive.
“You can have chocolate, vanilla, or strawberry ice cream,” may be contextually exhaustive (when those are the only flavors available) or not (at a store selling 31 flavors)
The Commerce Clause seems to posit forms of commerce not enumerated. Marshall does seem to have the right intuition. But not necessarily. One could also read it as providing three exemplars and thus probably read it much more broadly. Linguistic analysis does not provide a fully convincing, unique answer. That does not much matter, however. The shift from dictum to fundamental principle indicates that the dictum has moved well beyond linguistics into the normative realm (or perhaps more precisely into normative realms).
In some federal constitutional systems, state and federal powers are both enumerated. This gives rise to a “battle of the lists.” Every power must presumably be on at least one list. Courts interpret the powers. This text analysis often has a normative overlay. First, it may be but does not have to be a canon of interpretation that powers need to be exclusive. In other words, joint authority is legally possible. Whether it is desirable is a matter to which I return below. Second, one can take the view that the federal or state is a better default even if both have lists.
If there is only a list for one “side” (as in the US Constitution), the picture is different. One could say that the “non-list” side is necessarily the default. Yet that is also subject to various normative deflections. For example, even with a list on the federal side and none on the state side, one could take the normative view that any power that can reasonably fit into a federal enumerated power should be federal because federal authority is preferable (reasons could be uniformity, etc.). It does not follow, in other words, that the nonlist side is necessarily a preferred default.
During the presentation, my colleague Chris Serkin mentioned the principle (State v Simmons) that when a State delegates to a local authority, that delegation must be clear and—under the traditional Dillon’s rule—must be interpreted restrictively (at least in case of doubt). One could add to this that States (colonies) replaced the King of England and are, therefore, the original repository of governmental authority, some of which they delegated to the federal government. Viewed in that light (Simmons, Lopez and history), one would be justified in saying that the States are the preferred default. Simmons and Lopez provide symmetry: States have powers unless clearly proven otherwise. The beauty of symmetry is undoubtedly there, but it does not follow (as a normative matter) that what applies to delegation up (to the federal level) necessarily applies to delegation down (to local authorities) or vice versa. In the end, it seems to boil down to a normative view of which default level of government is “better.” One could argue that there is a single better default in all cases. Simmons, Lopez and history support that States are the default. Yet, that is not necessarily the answer. A pragmatist might argue that some federal powers should be interpreted broadly because the federal system works better when those specific powers are interpreted that way.
It is also a normative position to insist on a watertight separation of powers between the States and the federal level, one which efficiency may or may not support case by case. There may be cases where sharing authority works better. Then again, one can counter that efficiency is itself a normative claim, as are ways to measuring it. As American as efficiency and apple pie?
This at long last gets me to trademarks. Federal authority over trademarks is generally seen as resting on the Commerce Clause. To obtain protection and to be able to register under the Lanham Act a trademark must be used in interstate commerce. For defenders of State rights, it may well be that insisting that goods cross state lines before power is “transferred” to the federal level is the “big normative deal.” As a matter of commerce, I wonder. Let’s take an example. If Lisa sells 10,000 goods for $1 million without leaving Tennessee she has little to hope from the Lanham Act. Her rights in other states will be limited (eg to a passing off claim under state law). If Bruce sells 10 goods for $1,000 but has five genuine (arms-length) sales across state lines (perhaps because he had a small website built), then he can probably register a federal mark. He would then get nationwide protection under federal law. This is admittedly not a hugely disturbing example but it does show that whether one takes an overall approach to state v federal rights (as a principle of constitutional law) or looks at individual powers, the outcome may not be the same.
Thoughts and criticism welcome.