In Loyola Law Reviewโs The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and โExpresslyโ Delegated Power, Kurt T. Lash delved into the original meaning of the Tenth Amendment. The following is an overview of the paper, which is a must-read for anyone wanting to learn about the original meaning of the 10th Amendment.
Beginning with the Articles of Confederation and moving through the post-ratification history, Lash contends that narrowly construing the Constitutionโs expressed powers as the Ninth and Tenth Amendments requires, and not Justice Marshallโs wider interpretation of the Necessary and Proper Clause in McCulloch, does a better job at reaching the original meaning of the Tenth Amendment.
Background
Lash sets the history of the Constitution and the Tenth Amendment against their predecessor, the Articles of Confederation. Article II of the Confederation stated, โ[e]ach state retains . . . every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
James Madison, in Federalist No. 44, argued that including the term โexpresslyโ in the Constitution would force Congress to do nothing in times of need or to work around the term, the former disarming Congress and the latter forcing Congress to disregard the Constitution. Madison, in hopes of garnering support to ratify the proposed Constitution, reassured Anti-Federalists that a bill of rights would address the issue of the enumerated powers.
Understanding โExpresslyโ
Lash points to a false dichotomy regularly put forth by scholars. The argument holds that the inclusion of โexpresslyโ in the Tenth Amendment means Congress only has the authority to exercise enumerated powers in a literal sense without any leeway for necessary and proper actions, or omitting it means that Congress is free to broadly exercise any and every imaginable power to further its perceived objects. But because the Tenth Amendment is grounded in the Articles of Confederation and state constitutional convention history, those narrations are considerably important. The history shows a third option reflected the original understanding of expressed powers more accurately. The ratifiers widely understood that โnarrow constructionโ of enumerated powers was evident, even without the term โexpresslyโ present in the Constitution or one of its amendments.
This โnarrow constructionโ reassurance was repeatedly used by Federalists to guarantee Anti-Federalists that the Constitution would bind the Federal Government to execute the tasks only which it had been delegated. With this understanding, ratification was successful and the House turned to the proposal of a bill of rights.
The Proposal of a Tenth Amendment
Upon ratification of the Constitution, states soon began to propose amendments. As Lash notes, โ[a]mong the most common of these were declarations or amendments mirroring the language of Article II and the limited delegation to congress of only express powers.โ The Federalist advocates had assured the ratifiers that the Constitution would have a narrow interpretation with powers โexpresslyโ reserved to the states. The states wanted it in writing.
In Congress, James Madison and Thomas Tucker clashed during debates over whether or not to include the term โexpresslyโ in the Tenth Amendment; Tucker sought to include the term, while Madison objected on the belief that it would be โimpossible to confine a Government to the exercise of express powersโฆ.โ
Tucker and Madison did not understand โexpresslyโ to have the same meaning. Madison understood that inclusion of the term โmight be construed to deny the government even those means โclearly comprehendedโ by the express grant.โ Tucker, conversely, believed it โwas understood that expressly delegated powers allowed for the exercise of all specific powers โclearly comprehended within any accurate definition of the general power.โโ
Exclusion of the term, therefore, was no so much about a disdain or obsession with an extremely limiting or expansive interpretation of power, but a disagreement based a mutual misunderstanding of what โexpresslyโ meant. As Lash notes, โ[p]ut another way, there is no evidence that Madison or anyone else in House of Representatives rejected the general idea that Congress had none but expressly delegated powers properly understood.โ
After two attempts in the House to include โexpresslyโ in the Tenth Amendment, the effort was put to rest.
What does a โnarrow constructionโ mean concerning the rejection of the term โexpresslyโ in the Tenth Amendment? The common understanding of a narrow construction, coupled with a strong appreciation of federalism, correctlyย givesย the omission of the term less significance than it has been given by most modern scholars. Federalist ideals did not disappear with the omission of โexpressly,โ and ratification of the Tenth Amendment without the term did nothing to negate the ratifiersโ belief that the Constitution would hold the Federal Government to its enumerated powers with narrow ancillary power retained only to effect the authority it had been delegated.
The Ninth Compliments the Tenth
The two Amendments, taken together, are powerful tools of constitutional construction that reinforce the idea of a โnarrow constructionโ of the Constitution. The Ninth Amendment undoubtedly states that the Constitutionโs enumeration of certain rights doesnโt permit Congress to deny or disparage other unenumerated rights. While there is some disagreement as to the scope of the Ninth Amendment, Lash notes that, at a minimum, the Ninth Amendment mandates that Congress interpret the Constitution in a way which does not limit the rights of the people to only those that are included in the Constitution. The Tenth Amendment adds to this by reserving powers not delegated to the Federal Government to the states or to the people. The Tenth affirms, in writing, the principled assurance Federalists gave to the ratifiers that enumerated powers were to be narrowly construed, while the plenary remainder was delegated to the states and the people.
Examining these two Amendments together shows they function
โas dual limits on the power of the federal government to intrude upon matters thought best left to state control. As Madison put it in a 1791 speech to the House of Representatives, the Ninth Amendment prevented a โlatitude of interpretationโ of federal power while the Tenth โexclud[ed] every source of power not within the Constitution itself.โโ
Conclusion
Kurt T. Lashโs article richly narrates the Tenth Amendmentโs original meaning in a way that is easy to read. More importantly, Lashโs research sheds invaluable light on the original meaning of the Tenth Amendment, and his historical research is well-supported with numerous citations and explanatory footnotes. Lash shows how the Tenth Amendmentโs history reinforces the idea of federalism, provides for a narrow reading of the Constitutionโs enumerated powers even without the term โexpressly,โ and, coupled with the Ninth Amendment, prevents a latitude of interpretation that would infringe on the peopleโs ability to self-govern. The article displays important history that must not be forgotten, and that Congress should oft be reminded.
