Richard Primus (University of Michigan Law School) has posted Enumeration and Continuity on SSRN. Here is the abstract:
Parliament describes its legislation as enacted by the Queen, who has no legislative role, so as to show loyalty to a tradition in which it locates itself. This ostensible ascription of legislative power to the Queen is a form of ritual that we may call a “continuity tender.” American law may also contain continuity tenders, albeit not always recognized as such. In particular, the traditional assertion that the federal government is limited by its enumerated powers might be better understood as a continuity tender than as an actionable rule. It is a mistake to think that the law in practice must behave as the axiom seems to require, just as it is a mistake to think that the Queen legislates, or should legislate. But asserting that axiom locates constitutional lawyers within a tradition to which they feel allegiance.
Highly recommended!
