A Brief History of the Tenth Amendment

by Kurt T. Lash

Excerpted from the paper, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment”

The historical precursor to the Tenth Amendment was Article II of the Articles of Confederation, which declared that, “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

Because the states had existed for more than a decade under the Articles of Confederation as thirteen independent and sovereign states, the degree to which the proposed Constitution would diminish (or eradicate) state sovereignty was a major issue in the ratification debates.

Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.

The New York Convention, for example, declared:

[T]hat every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution

Other states, not content to leave the matter to a simple “declaration of principle,” ratified the Constitution on the understanding that amendments would be added as soon as was practicable. Several states submitted lists of proposed amendments, all of which included a clause expressly declaring the reserved powers and rights of the states. Virginia’s proposal went beyond New York’s declaration of assumed principle and called for an express constitutional declaration: “That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal Government.”

The Federalists, who advocated the adoption of the Constitution, had no objection to such an amendment. After all, they had argued in the state ratification conventions that the structure of the Constitution necessarily implied such a principle of limited enumerated federal power. Madison himself had written in Federalist Number 45 that “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Accordingly, Madison faced no opposition when he proposed an amendment stating that “the powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.”

The absence of opposition in this case, however, does not indicate the presence of enthusiasm. Madison’s own remarks in introducing this provision to the House were decidedly tepid:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

Madison clearly was not convinced of the necessity of such a clause. He and other Federalists originally had resisted adding a Bill of Rights, in part because they believed that the Constitution, fairly construed, already established the principle of limited enumerated federal power. Still, Madison acceded to the demands of the states, if only to head off a second constitutional convention, and dutifully proposed the “superfluous” Tenth Amendment.

In fact, even the most vigorous proponents of states’ rights also were less than enthusiastic about the proposed Tenth Amendment. They did not object to Madison’s draft or believe the principle unimportant; it was just that they believed that the Tenth Amendment was unlikely to have any “real effect.” It was already well understood that all non-delegated powers remained with the states. New York, after all, ratified the Constitution on this presumed understanding, even without the addition of the Tenth Amendment. Worse, by adding the final phrase “or to the people,” some objected that the Tenth Amendment would actually undermine the principle that all non-delegated powers were reserved to the States.

The problem was not that anyone seriously disputed the proposed government would be one of enumerated powers. The structure of the Constitution and the enumeration of federal power in Article I, Section 8 seemed to clearly imply that principle. The problem was how to prevent the undue expansion of those powers that were enumerated. Federal courts would be empowered to construe the Constitution and, as branches of the federal government, they were believed likely to do so in favor of federal power.

Nor would the addition of express restrictions on federal power necessarily solve the problem. Indeed, adding such restrictions might even prove dangerous, for the enumeration of certain rights might be construed to allow federal power to extend to all matters except those expressly prohibited. Limiting federal power required a rule preventing unduly broad interpretations of enumerated federal authority, thus ensuring that the people of the individual states would retain significant autonomy over those matters that were best left to local control. A number of state ratifying conventions proposed the addition of such a rule of interpretation—proposals that Madison relied on in drafting his own version of what would become the Ninth Amendment. The Virginia ratifying convention, for example, proposed the following amendment, which Madison himself helped draft:

That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

Similarly, Madison’s original version of the Ninth Amendment which he presented to the House, stated that:

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Madison’s version of the Ninth Amendment thus echoed the Virginia proposal and satisfied the demands of other state conventions for a provision preventing the undue extension of federal power. Madison’s version also prevented any implied extension of federal power arising from the addition of specific enumerated rights.

Madison’s proposals were referred to a Select Committee (of which Madison was a member) and, when a streamlined version of the Bill of Rights came back to the full House, the Ninth Amendment no longer contained the language limiting the extension of federal power.

The deleted language raised concerns in Virginia where Edmund Randolph feared that his state’s call for a provision limiting the construction of federal power had gone unheeded. Madison responded that protecting the retained rights of the people amounted to the same thing as prohibiting the constructive enlargement of federal power.

In a letter to George Washington discussing Randolph’s concerns about the Ninth Amendment, Madison explained that, “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured, by declaring that they shall not be abridged, or that the former shall not be extended.” According to Madison, preserving retained rights amounted to the same thing as prohibiting the undue extension of power.

Thus, in Madison’s view, the final draft of the Ninth Amendment continued to express the same principle of limited federal power— only now it expressed this principle as a matter of retained rights. Under the Tenth Amendment, Congress had no powers but those enumerated. Under the Ninth, Congress and the Courts could not construe those enumerated powers in a manner denying or disparaging rights retained by the people.

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.