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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