The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and 'Expressly' Delegated Power
Kurt T. Lash
University of Illinois College of Law
October 1, 2007
83 Notre Dame Law Review 101 (2008)
Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term expressly suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power was simply an attempt to foist the term expressly into the text. Today, Marshall's point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.
It is also almost certainly wrong. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out: Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the Clause (and federal power). Completely missed by generations of Tenth Amendment scholars, by adding the phrase or to the people to the Tenth Amendment, its framers ensured that the Clause would be read as a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of expressly delegated powers, meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, the Tenth's assertion of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch.
Number of Pages in PDF File: 54Accepted Paper Series
Date posted: July 12, 2007 ; Last revised: September 30, 2012
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