by Rob Natelson
In an earlier post, I wrote that the Tenth Amendment was adopted to reinforce the legal interpretation rule providing that if you list some items in a document, this implies that other items are excluded. The Tenth Amendment clarified that the federal government enjoyed only the powers listed in the Constitution and no others.
But why should anyone think there were others? Especially if there was a legal rule of interpretation to the contrary?
The answer to that question takes us to a story known to very few – even to very few constitutional scholars.
Throughout the period of the Continental and Confederation Congresses (1776-1788), advocates of a strong central government argued that, in addition to whatever express powers Congress had received from the states, Congress also enjoyed additional “inherent sovereign authority.” This theory would allow Congress to exercise many powers not on the list granted by the Articles of Confederation.
During this period, the “inherent sovereign authority” argument was made by John Adams, Benjamin Rush, Alexander Hamilton, James Madison, and the Hartford Convention of 1780. They argued that Congress necessarily had inherent sovereign authority because it was America’s agent for foreign affairs. They sometimes argued that the British Crown conveyed inherent sovereign authority to Congress by the 1783 peace treaty recognizing independence.
The best-known exposition of inherent sovereign authority appeared in James Wilson’s Considerations on the Bank of North America. Wilson’s purpose in composing this paper was to justify Congress’s decision to charter a national bank, even though the Articles of Confederation had given Congress no such power.
Opponents of the Constitution admitted that the Constitution enumerated federal powers, but they feared that Wilson & Company might raise the same “inherent sovereign authority” claim again. Accordingly, most of the states demanded a constitutional amendment explicitly limiting the federal government to those enumerated in the Constitution. That amendment became the Tenth.
What is particularly surprising in light of this history and the Tenth Amendment’s explicit wording, is that some people still argued that the federal government had a vast reservoir of “inherent sovereign authority.”
The subject came up in a 1907 case (Kansas v. Colorado), but the Supreme Court rejected the idea, citing the Tenth Amendment. But the Court used the theory in a 1936 (U.S. v. Curtiss-Wright) to justify federal foreign affairs powers. And a majority of the court seems to have endorsed it in a 2004 case (U.S. v. Lara) explaining federal power over the Indian tribes.
But as a matter of history and constitutional text, there is no real doubt that the Tenth Amendment rendered the theory of “implied sovereign authority” completely illegitimate.
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.