The Original Meaning of an Omission

295_constitutionEditor’s Note: This scholarly study, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power,” by Kurt T. Lash, is one of the finest examples of Tenth Amendment research available.

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

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 strict construction of federal power was simply an attempt to insert “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. According to these Founders, 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 text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power – the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

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One of the nation’s leading scholars of constitutional law, Professor Kurt T. Lash is honored as the newest recipient of the Alumni Distinguished Professor of Law at the University of Illinois College of Law, where he directs the Program in Constitutional Theory, History, and Law. Previously, he was the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.

Professor Lash focuses his scholarship on constitutional law, theory, and history, and his work has appeared in some of the top law reviews in the United States, including the Stanford Law Review, Virginia Law Review, Georgetown Law Journal, Northwestern Law Review, and Texas Law Review. His recent book, The Lost History of the Ninth Amendment, was published in 2009 by Oxford University Press.

Copyright, Kurt T. Lash, Notre Dame Law Review

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66 comments
Charlotte Rice
Charlotte Rice

states that are caving about the Obamacare exchanges aren't likely to care about states rights .They know fed gov has to borrow 1.7 trillion dollars to fund exchanges for 2 yrs then states will have to raise taxes BUT they have their hands out for federal money

Will Ferrell
Will Ferrell

You may be crediting the wrong people for the 10th Amendment. Were it left to Federalists like Hamilton, there would be no Bill of Rights at all. Much of what he said was a sales job. Still, nothing wrong with remembering how it was SOLD.

Will Ferrell
Will Ferrell

Hamilton wasn't above bait-&-switch. In contrast to Madison, he wrote the Federalist Paper merely to sell the Constitution. It took him no time at all to repudiate the "few & defined" notion.

Valerie Ploch
Valerie Ploch

And Obama and Congress are delegating more power to the Federal Govt. daily and Americans are letting them!

Dale Hicks
Dale Hicks

just a thought. can we take back what we already gave them....

Laurette Petit Murphy
Laurette Petit Murphy

They don't want you to know it....they want us dumbed down thinking we are powerless....if unconstitutional federal laws trumped....we would have had a dictatorship well over 100 hrs ago.

Laurette Petit Murphy
Laurette Petit Murphy

Nullification....the STATES power against tyranny and unconstitutional laws. They trump.....

Harrison Kurt Richter
Harrison Kurt Richter

History, past and recent, makes one thing perfectly clear about government. The higher up you go, the more corruption, criminality, and power-trips you find. In short, people in government always seek more control over the populace, and less hinderance and transparency for themselves. The amount the US has now deviated from the Constitution thus indicates how deeply we have been emersed in a foreign-backed tyranny, directed against the American People.

Shera McQueen
Shera McQueen

There is no acknowledgement of United Nations in our constitution. We do not have to acknowledge any UN laws!

Ed Hillenbrand
Ed Hillenbrand

Nullification is what many of the elected folks are preaching in NY right now on the gun law. King Andrew is wheeling and dealing trying to salvage part of it.

Sara Tiffin DiNicola
Sara Tiffin DiNicola

No matter who is in power, if a group of citizens (or even one) show up at City Council mtg. and suggest a resolution like any @ tenthamendmentcenter.com/local, things can start happening.....Regular citizens may not want to run for office, but that doesn't mean they agree with who got voted in, and they may very well want to get behind a nullification of federal power that reaches down to the local level.

Sara Tiffin DiNicola
Sara Tiffin DiNicola

Bring up any unconstituional bill at your local city council, and suggest they consider nullifying at the local level (sample resolutions are at tenthamendmentcenter.com/local)....This is getting POPULAR, so it's alot easier to do than a few years ago.

Ed Hillenbrand
Ed Hillenbrand

Like any other Power not used once lost it is hard to regain. The way to get it back is to vote the bums out. This starts at the local level. Yesterday we had a village election where no new was on the ballot again for the 3rd election in a row.

Lee Rogers
Lee Rogers

The Current U.S. Congress.....Is Really No Different than the Chineese Communist Party, or the Old Russian Communist Party....BOTH....are Nothing More Than GANSTERS....On a National Scale....Criminal, Currupt, and Greedy .......

Paul Smith
Paul Smith

And then they stuck in ambiguous phrases like "general welfare" and "regulate commerce" - holes big enough to navigate supertankers through. One has to wonder if that wasn't deliberate?

Steve Zeller
Steve Zeller

Where did Hamilton find the Bank of the United States in the Constitution?

Phillip Pence
Phillip Pence

It's all part of the dumbing down of Americans to the point we find ourselves at now, people's votes being bought by trinkets and empty promises.

Jimmy Porter
Jimmy Porter

Is it possible that we do not know what expressly delegated mean? Should they have been listed, as in a predesigned column within which rights are listed so they are clearer to all on the playing field?

Tim Congdon
Tim Congdon

Just following that would provide at least a 60% cut in government...

Mike Loveridge
Mike Loveridge

if and when you give up your rights for security you will have neither!!!!!!!!!!!!!

Steve Gatch
Steve Gatch

The current U.S.Congress bears no resemblance to the poeple's Congress established in the U.S.Constitution. Today's Congress is a corrupt fabricaton and bears more consequence than any White House puppet.

Greg Thomas
Greg Thomas

Well you can thank Abraham Lincoln for destroying that . The south was and is right.

David Custer
David Custer

The Sovereign people must learn how to reassert their sovereign, God-given rights.

JimThompson2
JimThompson2 like.author.displayName 1 Like

An excellent exposition on the controversy over the lack of the term "Expressly" in the 10th Amendment.  I hope everyone will take the time necessary to read the entire work as it is one of the best expositions on the limits of Federal power I have read.  My only complaint is that in Section 3(C)2(D) the author seems to reject the only possible remedy for abuse and offers no other.  Overall a wonderful work and well worth study.

WilliamSchooler
WilliamSchooler like.author.displayName 1 Like

The origin of a meaning may have more merit for no better example can be shown than the pictures well illustrated in this film. They are explicit, truthful and the words surrounding this tell our 200 plus year history. Maybe all these words, definitions of and documentations of authority did create what was called for, you be the judge, someone has to say it.

 

 

The Declaring our Independence our first documented truth which today still holds its true merit.

 

The rest is suspect by examples alone. Enjoy;

http://www.youtube.com/watch?v=N2Xh5eN2fXY&feature=share

 

 

 

 

Wendy Weinbaum
Wendy Weinbaum like.author.displayName 1 Like

Gun Control is the last refuge of the coward. As a Jewess in the US, may I remind everyone that America wasn't won with a registered gun? And that criminals are stopped by FIREARMS, not by talk? That is why all REAL Americans put our 2nd Amendment FIRST!! -Wendy Weinbaum

MichaelBoldin
MichaelBoldin like.author.displayName 1 Like

Great comment, Wendy - looking forward to seeing more feedback from you around here in the near future!

Jeff
Jeff like.author.displayName 1 Like

I agree with the premises that the 10th amendment is intended to limit federal powers to the enumerated powers. However, the civil war gave "states' rights" a bad name that lasts until the present. The justification of slavery under the heading of states' rights is an association deep in the American psyche. Then add to this corruption of business and government at the state and local levels and the rise of populism and progressivism, and we had a formula for steady growth of federal power. The states' right doctrine is constitutionally correct, and limits federal government. I think the pendulum should swing back in that direction in light of egregious invasions against our liberties; yet, what arguments can I advance against the expansion of federal power occasioned by these movements?
Thanks.

JMB
JMB

I would rather my freedoms be reliant upon drugs, then dependent upon an economic collapse.
Set yourself free, take LSD. lol

DON
DON like.author.displayName 1 Like

PATRICK HENRY LIVES COMMENT ON JULY 27 IS STARTING TO MAKE ALOT OF SENSE WITH ME.

LoveMyCountry
LoveMyCountry like.author.displayName 1 Like

@ BK Campbell

Re: Membership drive...donation drive...“express” purpose of hiring a Constitutional Lawyer...class action suit for We the Members

Has the above been addressed? If so, what's the status? Finally, would it be viewed as a secession issue?

A regular Joe asking irrelevant questions(?)

LoveMyCountry
LoveMyCountry like.author.displayName 1 Like

@ BK Campbell

Re: Membership drive...donation drive...“express” purpose of hiring a Constitutional Lawyer...class action suit for We the Members

Has the above been addressed? If so, what's the status? Finally, would it be viewed as a secession issue?

A regular Joe asking irrelevant questions(?)

Ruth Ann Wilson
Ruth Ann Wilson like.author.displayName 1 Like

I want to make a comment on this "Birth Certificate Issue". The real problem was that this "question" should have been settled at the State Electoral College meetings to certify the "election in December". The Electoral College is not an "antiquated appendage of the Constitution", the question of citizenship was in their "scope" to settle. The Electoral College at the State level should have called the "question." They should have refused to "certify the election" until all "questions" were answered. The Electoral College is the "check and balance" of violations of the Constitution against the people.
People can't get much farther than the fact the "question" was never settled by the Electoral College that should have settled the "question". The State level Electoral College could have and should have resolved all "Constitutional questions" at that time before they "certified the election." Many States have severe penalties for "dereliction of duties" as pertains to the Electoral College.

The Foundations are "being destroyed and what shall the Righteous do?" My answer is "Build them back."

For God & Country
Ruth Ann Wilson

Terry Morris
Terry Morris like.author.displayName 1 Like

Michael Boldin wrote:

I find it hard to believe that people put so much energy into Obama’s citizenship. While he should be ineligible if it were proven that he was foreign-born, I can see many more constitutional violations that should result in impeachment or removal from office - and they happen every day in broad daylight. They need no research or fact-finding, or any of it.

First of all, you're disparaging people who are mainly on your side, much in the same way that the critics of the tenth amendment movement disparage those of us (you included) who support the movement in spite of it currently representing 'no teeth' resolutions. Why? Second, as a "constitutional constructionist" of sorts yourself, I find it hard to believe that you, Michael, think it a waste of time and energy, the pursuit of truth related to Obama's (and anyone else's, by extension) eligibility to serve as POTUS. Third, as I've said before, here and elsewhere, people tend to 'come along' at their own pace. Not everyone sees the same constitutional violations that you and I and a few others see. There's nothing wrong with pointing those violations out, but, as I said, to disparage people who are mainly on your side because you see something vitally important to them as a waste of time and energy doesn't make much sense to me.

Terry Morris
Terry Morris like.author.displayName 1 Like

Michael Boldin wrote:

I find it hard to believe that people put so much energy into Obama’s citizenship. While he should be ineligible if it were proven that he was foreign-born, I can see many more constitutional violations that should result in impeachment or removal from office - and they happen every day in broad daylight. They need no research or fact-finding, or any of it.

First of all, you're disparaging people who are mainly on your side, much in the same way that the critics of the tenth amendment movement disparage those of us (you included) who support the movement in spite of it currently representing 'no teeth' resolutions. Why? Second, as a "constitutional constructionist" of sorts yourself, I find it hard to believe that you, Michael, think it a waste of time and energy, the pursuit of truth related to Obama's (and anyone else's, by extension) eligibility to serve as POTUS. Third, as I've said before, here and elsewhere, people tend to 'come along' at their own pace. Not everyone sees the same constitutional violations that you and I and a few others see. There's nothing wrong with pointing those violations out, but, as I said, to disparage people who are mainly on your side because you see something vitally important to them as a waste of time and energy doesn't make much sense to me.

Publius Huldah
Publius Huldah like.author.displayName 1 Like

Dear Ruth Ann,

Your question is so important that I am doing something which I fear some will consider really tacky! If you will go to my blog (click on my name in blue) & read the article "Religious Freedom", you will see exactly how judges on the US Supreme Court went about banning religion from the public square AND you will see how lawless their actions were.

Once people understand how transparently lawless the judges' actions have been, how completely indefensible & contrary to the Constitution, it becomes very easy to say, "I refuse to be bound by such lawless usurpations".

I would love to be a principal of a public high school - I'd have prayers everyday. And I would post the Ten Commandments! Maybe even give quizzes on them! And if those meddlesome athiests from the ACLU attacked me, why, I'd call a press conference and challenge them to a public debate! I'm telling you: They can not defend their positions intellectually!

By the way, I live in the "Bible Belt": At every public event I attend (tea parties, political meetings, etc.), we have prayers, usually led by a pastor. These meetings are all on "public property". Most people bow their heads & participate. Nobody objects! If anyone did, we'd laugh at them.

The people on our side have been asleep & we are lazy. We need to wake up. We need to learn the Constitution! It's not difficult. Then we need to take on the left, show how unconstitutional their positions are, and make fools of them. You don't need to be a lawyer to do this. I saw a car salesman make a fool of liberal TV reporter who objected to his giving an AK-47 to those who bought a truck from him! That was priceless!

God bless you, friend. PH

Ruth Ann Wilson
Ruth Ann Wilson like.author.displayName 1 Like

I have a question. I hope I am not out of place to ask this in this forum, so please inform me if I am.

Here is the question: In 1963, when the Supreme Court hearkened to the Atheist O'Hare and ruled prayer and Bible reading out of the Public Schools, the decline started. How would a Supreme Court decision be reversed? Would a "reverse decision" strike it from the record, never to be brought back up????

It seems to me that our decline in this Beloved Country started at this point. How do you reverse a Supreme Court Decision?????

Thanks

For God & Country
Ruth Ann Wilson

sas4liberty
sas4liberty like.author.displayName 1 Like

States can nullify federal laws and it has been done numerous times since the Constitution was ratified. Secondly, the Supreme Court usurped power in regard to the Supremacy clause. I believe the original intent limits their supremacy only to federal issues, and they do not apply to State issues. In essence, any power left to States are not subject to the supremacy clause. By usurping power and stating they themselves have supremacy over everything and everyone contradicts the Framers intent.

I agree with those stating each State must pass a 10th amendment sovereignty bill that is meaningful. The states are not subserviant to the federal government, nor are they born from the federal government. The people and the States created the federal government and the federal government is subserviant to the States.

The States can call a Constitution Convention and propose amendments to the Constitution. It is unlikely that Congress will propose amendments such as term limits for representatives and senators; restate the meaning of the commerce clause, the general welfare clause; repeal the 17th amendment so that Senators are appointed by State legislatures, etc.

We need to protect our Liberty.
Scott.

Ruth Ann Wilson
Ruth Ann Wilson like.author.displayName 1 Like

Mr. Bolden, I certainly agree with you. These Forum give people an opportunity to think and by the Grace of God, DO.

The LOCAL level of government was to be the strength of power. I agree that "State Sovereignty" must be regained. I also see that the LOCAL level must once again be loosed from the "State Restraints". Local School Boards, Local Property Assessors, Local County Commissions, Local Sheriffs, this level of government is where WE, THE PEOPLE, live, move and own property. Grants and "Revenue Sharing" have done much damage to the Local Level. By the "Grant System" we have surrendered the "Local Level." Keep the money collected locally for local business and exist on a Local budget. It wasn't until 1965 that this "clever tool" came to us for our own destruction under the Johnson Administration.

Declarations of Sovereignty must come to Local, State, and Federal governments. "Draw the line" and that Line is the Constitution & Bill of Rights prior to 1913, Declaration of Independence and the Ten Commandments of Almighty God.

For God & Country
Ruth Ann Wilson

Ruth Ann Wilson
Ruth Ann Wilson like.author.displayName 1 Like

Mr. Rankin, you are correct. It is not "secession", it is "Sovereignty". God has already ruled against "Breaking the Constitution".
When the 17th Amendment was added to the Constitution, a very delicate "check and balance" was destroyed. The Founders wanted the Senate to reflex the "State Level". The Popular election of the Senate has produced "Princes in high places". We, the people, have no voice with this chamber because the "balance of power" has been lost. Power was always to reside with WE, THE PEOPLE. In this case, We sent LOCAL representatives to the State Legislature, they were responsive to WE, THE PEOPLE. It was relatively easy to address them. They move among us. They have to stand LOCAL elections to go to the State Legislature. We have their attention and we have State Constitutions which if they get out of bounds and violate their Oath of Office, they won't go back. So the Founders wisely stated that the Senate would be elected from the State Legislature. It protected the "Sovereignty of the States and their Constitutions".
Comment- The Founders where men who "loved their people". They had Preachers who Preached. I have in my possession a book - "They Preached Liberty". These valiant Preachers feared God, not government. Preachers now fear the "501C-3".

We can fix it. God sees the prayers, tears, sighs, and cries of the Veterans and Patriots. No one can deny that God built this Beloved Country for His Glory and Our Good. It has come to pass.

For God & Country
Ruth Ann Wilson

Publius Huldah
Publius Huldah like.author.displayName 1 Like

Wendy, I am quite certain that if obama is in fact ineligible to hold office by reason of not being a natural born Citizen, he is properly subject to impeachment, conviction and removal from office, if he refuses to resign.

The "theologians" whom you cite should get back to counting the number of angels who can dance on the head of a pin! At that task, they can spread no misinformation which does harm. PH

Michael Boldin
Michael Boldin like.author.displayName 1 Like

I find it hard to believe that people put so much energy into Obama's citizenship. While he should be ineligible if it were proven that he was foreign-born, I can see many more constitutional violations that should result in impeachment or removal from office - and they happen every day in broad daylight. They need no research or fact-finding, or any of it.

So, back to the article at hand - what it teaches us is that the federal government is one of limited powers, not the one of nearly unlimited powers that exists today. Therefore, a large portion of what the feds do every single day - is in violation of the constitution.

Looking to the federal government to fix itself is a foolish strategy. That's why I'm happy to see so many people recognizing the effectiveness of looking inward - to local communities and state governments - to resist federal overreach.

Wendy Weinbaum
Wendy Weinbaum like.author.displayName 1 Like

As a Jewess in the US, I ask WHAT is Hussein Obama HIDING? Doesn’t matter! TOO LATE NOW! There are now some constitutional/legislative “theologians” who say that even IF the DemocRAT votes COULD be found to impeach him, that Obama is legally UNIMPEACHABLE, if in fact he is not a natural-born American. They say that, because then he would never have been eligible to hold the office in the first place, and so is NOT the President, and thus CANNOT be impeached! The articles simply would NOT APPLY to him, any more than they would to you or me. Meanwhile, he occupies the White House, sitting around smoking cigars, drinking Crown Royal, and flitting about on Air Force One. If true, HOW would he be removed from the White House? Perhaps via an ordinary EVICTION process? Don’t let the media bury this story! -Wendy Weinbaum

Wendy Weinbaum
Wendy Weinbaum like.author.displayName 1 Like

As a Jewess in the US, I ask WHAT is Hussein Obama HIDING? Doesn’t matter! TOO LATE NOW! There are now some constitutional/legislative “theologians” who say that even IF the DemocRAT votes COULD be found to impeach him, that Obama is legally UNIMPEACHABLE, if in fact he is not a natural-born American. They say that, because then he would never have been eligible to hold the office in the first place, and so is NOT the President, and thus CANNOT be impeached! The articles simply would NOT APPLY to him, any more than they would to you or me. Meanwhile, he occupies the White House, sitting around smoking cigars, drinking Crown Royal, and flitting about on Air Force One. If true, HOW would he be removed from the White House? Perhaps via an ordinary EVICTION process? Don’t let the media bury this story! -Wendy Weinbaum

Tom Rankin
Tom Rankin like.author.displayName 1 Like

@ Nicholas

I do not advocate secession. I advocate enforcement of a contract.

The very first item in a Bill of Sovereignty is:
- Form an Alliance of Sovereignty between all 50 states.
Work within that Alliance to peaceably bind the Federal Government with the chains of the Constitution and the Rule of Law.

50 states, all on the same page. We take our country back.

PS I would like too see that new Louisiana flag.

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