by Rob Natelson, Electric City Weblog

The Founders were aware that, as is true of any legal document, the Constitution’s application to new cases sometimes would not be obvious, and the instrument would have to be interpreted. The Founders expected future interpreters to resort to the “meaning of the makers.”

One way to help determine the “meaning of the makers” was to employ long-standing guidelines for legal interpretation – called “rules of construction.” The rules of construction were considered to be of very great authority.

Perhaps 90 percent of them were stated in Latin, with the rest in English or Norman French. Many, if not most, of them are still used by lawyers and judges today when they interpret legal documents.

One particularly important rule of construction was Designatio unius est exclusio alterius – “the naming of one thing implies the exclusion of the other.”  Example:  If your spouse tells you to go to the grocery store and buy “cucumber, lettuce, milk, and eggs,” he or she probably is NOT suggesting that you buy cheese.

The Constitution listed over 30 powers of Congress. But the Constitution’s advocates pointed out that the designatio unius maxim made the list exclusive: Congress would have no powers not on the list.

To quiet fear from the Constitution’s opponents that the designatio unius rule might be disregarded, both sides agreed to adopt the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Thus, Congress was given various listed powers – such as authority to regulate commerce, to tax, to coin money, and to govern the federal territories and enclaves (such as D.C). But otherwise, Congress received no authority to control education, manufacturing, agriculture or a lot of other things Congress that presumes to control today.

Robert G. Natelson is Professor of Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment at the University of Montana.  He is a David Mason Scholar, and is a recognized national expert on the framing and adoption of the United States Constitution.  He edits the website, The Scholarship of the Original Understanding of the Constitution.

Rob Natelson

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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