In Loyola Law Review’s The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” 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 Constitution’s expressed powers as the Ninth and Tenth Amendments requires, and not Justice Marshall’s 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, “[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 “expressly” 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 “Expressly”

Lash points to a false dichotomy regularly put forth by scholars. The argument holds that the inclusion of “expressly” 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 “narrow construction” of enumerated powers was evident, even without the term “expressly” present in the Constitution or one of its amendments.

This “narrow construction” 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, “[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.” The Federalist advocates had assured the ratifiers that the Constitution would have a narrow interpretation with powers “expressly” 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 “expressly” in the Tenth Amendment; Tucker sought to include the term, while Madison objected on the belief that it would be “impossible to confine a Government to the exercise of express powers….”

Tucker and Madison did not understand “expressly” to have the same meaning. Madison understood that inclusion of the term “might be construed to deny the government even those means ‘clearly comprehended’ by the express grant.” Tucker, conversely, believed it “was understood that expressly delegated powers allowed for the exercise of all specific powers ‘clearly comprehended within any accurate definition of the general power.’”

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 “expressly” meant. As Lash notes, “[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.”

After two attempts in the House to include “expressly” in the Tenth Amendment, the effort was put to rest.

What does a “narrow construction” mean concerning the rejection of the term “expressly” in the Tenth Amendment? The common understanding of a narrow construction, coupled with a strong appreciation of federalism, correctly gives 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 “expressly,” and ratification of the Tenth Amendment without the term did nothing to negate the ratifiers’ 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 “narrow construction” of the Constitution. The Ninth Amendment undoubtedly states that the Constitution’s enumeration of certain rights doesn’t 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

“as 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 ‘latitude of interpretation’ of federal power while the Tenth ‘exclud[ed] every source of power not within the Constitution itself.’”

Conclusion

Kurt T. Lash’s article richly narrates the Tenth Amendment’s original meaning in a way that is easy to read. More importantly, Lash’s 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 Amendment’s history reinforces the idea of federalism, provides for a narrow reading of the Constitution’s enumerated powers even without the term “expressly,” and, coupled with the Ninth Amendment, prevents a latitude of interpretation that would infringe on the people’s ability to self-govern. The article displays important history that must not be forgotten, and that Congress should oft be reminded.

Brian Hoops resides in Florida. When he isn’t fishing, surfing, walking his dog, or cooking, he enjoys studying up on occupational licensing, free speech, and economic liberty so he can (after law school) fight arbitrary government regulations in court. Follow him on Twitter @brian_hoops

Concordia res parvae crescunt
Small things grow great by concord...

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