46 Pages Posted: 16 Nov 2005
It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual hook for this rule of strict construction has been the Tenth Amendment.
The Court's reliance on the Tenth Amendment has been the source of unrelenting scholarly criticism, particularly because the amendment itself literally does nothing more than announce a mere "truism": Those powers not delegated are reserved. It says nothing about whether delegated powers are to be broadly or strictly construed. As I have written in two previous articles, Founders such as James Madison believed that the Ninth Amendment, not the Tenth, established a rule of strict construction. In this article, I address how it came to pass that the Tenth Amendment, and not the Ninth, became accepted as an independent rule of strict construction. Ironically, it was Madison himself who drafted the document that would establish the Tenth Amendment as the primary guarantor of constitutional federalism. Madison's 1800 "Report on the Virginia Resolutions" denounced the Alien and Sedition Acts as exceeding Congress's enumerated powers and thus intruded upon the retained rights of the states in violation of the Tenth Amendment. His Report became a canonical document in the 19th century states' rights movement and transformed the Tenth Amendment into a symbolic declaration of limited federal power.
Suggested Citation: Suggested Citation
Lash, Kurt T., James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment. George Washington Law Review, Forthcoming; Loyola-LA Legal Studies Paper No. 2005-30. Available at SSRN: https://ssrn.com/abstract=849665