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Kurt T. Lash*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1890
AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1897
A. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1897
B. The Traditional Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1899
C. Article II of the Articles of Confederation . . . . . . . . . . . . . . . . . . 1902
D. The Federalist Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1905
E. The State Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1906
Sovereignty and the Construction of Delegated Power . . . . . . . 1908
G. The Other Meaning of Expressly Delegated Powers . . . . . . . . . 1911
H. A Preexistent Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1913
AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1915
A. The State Convention Declarations and Proposed
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1915
B. The Virginia Ratifying Convention . . . . . . . . . . . . . . . . . . . . . . 1918
 2008 Kurt T. Lash.  Individuals and nonprofit institutions may reproduce and
distribute copies of this Article in any format, at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the Notre
Dame Law Review
, and includes this provision and copyright notice.
Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles).  J.D.,
Yale Law School, 1992.  The author thanks Larry Solum, Gary Rowe, Clark Lombardi,
Nelson Lund, and the participants at the University of Washington Law School
Faculty Workshop Series for their comments and suggestions on an early version of
this Article.  Special thanks to Chris Fritz for his help and advice on the vexing
question of sovereignty in the early republic.

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C. Summary of the State Conventions . . . . . . . . . . . . . . . . . . . . . . . 1919
D. Drafting the Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 1920
E. Popular Sovereignty and the Tenth Amendment . . . . . . . . . . . 1922
III. POST-SUBMISSION COMMENTARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1926
A. The Bank Controversy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1927
B. The Alien and Sedition Acts Controversy . . . . . . . . . . . . . . . . . 1935
C. The Nationalism of John Marshall . . . . . . . . . . . . . . . . . . . . . . . 1940
Popular Sovereignty and McCulloch . . . . . . . . . . . . . . . 1941
After Marshall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1946
D. James Madison’s Middle Ground . . . . . . . . . . . . . . . . . . . . . . . . 1951
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1953
Courts and the legal academy both generally agree that early
efforts to limit the federal government to only “expressly” delegated
powers were decisively rebuffed by Chief Justice John Marshall in
McCulloch v. Maryland.1  In McCulloch, the State of Maryland argued
that because chartering a bank was not within any of Congress’
expressly enumerated powers, the matter was therefore left to state
control under the Tenth Amendment.2  In response, Chief Justice
Marshall argued that the very language of the Tenth Amendment
refuted Maryland’s claim:
Among the enumerated powers, we do not find that of estab-
lishing a bank or creating a corporation.  But there is no phrase in
the instrument which, like the articles of confederation, excludes
incidental or implied powers; and which requires that every thing
granted shall be expressly and minutely described.  Even the 10th
amendment, which was framed for the purpose of quieting the
excessive jealousies which had been excited, omits the word
“expressly,” and declares only that the powers “not delegated to the
United States, nor prohibited to the States, are reserved to the
States or to the people;” thus leaving the question, whether the par-
ticular power which may become the subject of contest has been
17 U.S. (4 Wheat.) 316 (1819).  There are a number of excellent monographs
devoted to McCulloch.  Two of the most recent include MARK R. KILLENBECK,
(2007).  Probably the best (and most influential) general treatment of the Marshall
According to Maryland counsel Walter Jones, “[The Constitution] is a compact
between the States, and all powers which are not expressly relinquished by it, are
reserved to the States.” McCulloch, 17 U.S. (4 Wheat.) at 363.

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delegated to the one government, or prohibited to the other, to
depend on a fair construction of the whole instrument.3
According to Marshall, the fact that the Framers of the Tenth Amend-
ment departed from the language of the Articles of Confederation
and omitted the term “expressly” suggested that they intended for
Congress to have significant implied as well as expressly delegated
powers.  As Marshall’s colleague, Justice Joseph Story, wrote in his
famous  Commentaries on the Constitution, all attempts to read the Tenth
Amendment as calling for a strict construction “are neither more nor
less than attempts to foist into the text the word ‘expressly.’ ”4
Marshall’s opinion in McCulloch is one of the most famous in the
history of the United States Supreme Court.5  Contemporary scholars
frequently cite Marshall’s argument regarding the omitted word
“expressly” in support of broad interpretations of federal power.6
Even those Supreme Court Justices most committed to reinvigorating
federalist limits on congressional authority appear to accept the legiti-
macy of Marshall’s “omitted text” analysis of the Tenth Amendment.7
Id. at 406.
§ 1908, at 653 (photo. reprint 1994) (Melville M. Bigelow ed., Boston, Little, Brown &
Co. 5th ed. 1891).
See, e.g., 4 ALBERT J. BEVERIDGE, THE  LIFE OF  JOHN  MARSHALL 282 (1919) (“If
[Marshall’s] fame rested solely on this one effort, it would be secure.”).
EOUS  ANGER]; Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 CONST.
COMMENT. 25, 44 (2005); Robert J. Kaczorowski, Popular Constitutionalism Versus Justice
in Plainclothes: Reflections from History
, 73 FORDHAM L. REV. 1415, 1423–24 (2005); Wil-
liam E. Leuchtenburg, The Tenth Amendment over Two Centuries: More Than a Truismin
THE  TENTH  AMENDMENT AND  STATE  SOVEREIGNTY 41, 45–46 (Mark E. Killenbeck ed.,
2002); John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional
, 113 YALE L.J. 1663, 1748 n.323 (2004); Paul E. McGreal, Unconstitutional Politics,
76 NOTRE DAME L. REV. 519, 567 (2001); Ralph A. Rossum, The Irony of Constitutional
Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment
REV. 671, 722–23 (1999); see also Printz v. United States, 521 U.S. 898, 939 n.1 (1997)
(Stevens, J., dissenting) (citing the omission of “expressly” and Marshall’s argument
in McCulloch); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 853 (1995) (Thomas,
J., dissenting) (same); Jack N. Rakove, The Second Amendment: The Highest Stage of
, 76 CHI.-KENT L. REV. 103, 125 n.51 (2000) (using the assumed signifi-
cance of the omitted term “expressly” for the Tenth Amendment to make analogous
claims for the significance of omitting any reference to “standing armies” in the Sec-
ond Amendment).
See U.S. Term Limits, 514 U.S. at 853 (Thomas, J., dissenting); see also Mark R.
Killenbeck,  Pursuing the Great Experiment: Reserved Powers in a Post-Ratification, Com-
pound Republic
, 1999 SUP. CT. REV. 81, 111–13 (“For example, Justice O’Connor’s

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In fact, Marshall’s point in McCulloch about the missing word
“expressly” is probably one of the least controversial claims about the
original understanding of Tenth Amendment.
It is also almost certainly wrong.  Even before the addition of the
Bill of Rights, advocates of the new Constitution insisted that Congress
had only expressly  enumerated powers.  According to James Madison,
the addition of the Ninth and Tenth Amendments merely confirmed
the preexisting principle of expressly delegated power.8  During the
early decades of the Constitution, judges and commentators regularly
inserted into their description of the Tenth Amendment the very
word John Marshall insisted had been intentionally left out.  These
statements took place during and immediately after ratification and
were voiced by a broad range of figures directly involved in the effort
to ratify the Constitution.
The most vocal proponents of this view were Federalist supporters
of the Constitution.  For example, throughout the ratification debates
Federalist proponents of the Constitution insisted that Congress had
only expressly delegated powers.  In the New York ratifying conven-
tion, Alexander Hamilton declared that “whatever is not expressly
given to the federal head, is reserved to the members.”9  In the South
Carolina debates, Federalist Charles Pinckney insisted that “no powers
could be executed or assumed [by the federal government], but such
as were expressly delegated.”10  In a speech delivered to the House of
Representatives while the Bill of Rights remained pending in the
states, James Madison reminded the assembly that the proponents of
the Constitution had assured the states that “the general government
could not exceed the expressly delegated powers.”11  Speaking shortly
opinions evidence an extraordinary fixation on a Tenth Amendment within which the
only apparent value is its affirmation of the primacy of state government.”); David M.
Sprick, Ex Abundanti Cautela (Out of an Abundance of Caution): A Historical Analysis of the
Tenth Amendment and the Continuing Dilemma over “Federal” Power
, 27 CAP. U. L. REV.
529, 537–38 (1999) (noting Justice Story’s rejection of the characterization that the
Tenth Amendment acted as an abridgment of any constitutionally granted powers).
See infra note 176 and accompanying text.
FEDERAL  CONSTITUTION 362 (Jonathan Elliot ed., Phila., J.B. Lippincott Co. 2d ed.
1891) [hereinafter ELLIOT’S DEBATES] (reporting the remarks of Alexander Hamilton
to the New York ratifying convention on June 28, 1788).  Hamilton would take a far
broader view of federal power following the adoption of the Constitution. See infra
notes 158–59 and accompanying text.
4  ELLIOT’S  DEBATES,  supra  note 9, at 253–63 (reporting a speech by Charles
Pinckney before the South Carolina House of Representatives on January 16, 1788).
Congressional Proceedings, FED. GAZETTE (Phila., Pa.), Feb. 12, 1791, at 2
[hereinafter Congressional Proceedings, FED. GAZETTE].

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after the adoption of the Bill of Rights, Madison again declared that
“[w]hen the people have formed a Constitution, they retain those
rights which they have not expressly delegated.”12  According to Rep-
resentative John Page, a member of the First Congress that drafted
and debated the Bill of Rights, the combined effect of the Ninth and
Tenth Amendments rendered the Tenth as if it had in fact included
the term “expressly.”13  Finally, in one of the most famous decisions of
the Supreme Court’s first decade, Justice Samuel Chase declared that
“the several State Legislatures retain all the powers of legislation, dele-
gated to them by the State Constitutions; which are not EXPRESSLY
taken away by the Constitution of the United States.”14  These are just
a few examples that can be found easily in the historical record.
There are many others.  They arise in every major period of American
constitutional law, from the Founding,15 to the Reconstruction era,16
to the Lochner era,17 and right up to the modern Supreme Court.18
We are confronted then with a puzzle.  Despite Chief Justice Mar-
shall’s seemingly unanswerable argument regarding the omission of
the term “expressly” from the Tenth Amendment, there exists a long-
standing tradition, from the Founding to the modern Supreme Court,
whereby the principle underlying the Tenth Amendment is presented
as containing the very word its Framers rejected.
This Article contends that this tradition, and not Marshall’s argu-
ment in McCulloch, most accurately reflects the original understand-
ing of federal power and the Tenth Amendment.  In addition to a
remarkably copious historical record, support for this position can be
found in two significant pieces of historical evidence that until now
have gone completely unnoticed.  The first is a major speech by James
Madison in which he declared that the Bill of Rights, including the
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
mond, John Dixon 1799) (“I say, considering these things, how could it be possible to
suppose, that these two amendments [the Ninth and Tenth] taken together, were not
sufficient to justify every citizen in saying, that 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, as fully and completely; as if the word expressly had been
Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798).
See infra notes 66–68 and accompanying text.
See infra note 260 and accompanying text.
See infra note 244 and accompanying text.
See infra note 279 and accompanying text; see also Griswold v. Connecticut, 381
U.S. 479, 490 n.5 (1965) (Goldberg, J., concurring) (“The Tenth Amendment simi-
larly made clear that the States and the people retained all those powers not expressly
delegated to the Federal Government.”).

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Tenth Amendment, delivered on a promise to the state conventions
that the federal government would have only expressly delegated
power.  Although the speech is well known, Madison’s declaration is
not, for it is reported in a version of Madison’s speech consistently
passed over by historians.19  Secondly, although the Framers of the
Tenth Amendment rejected the term “expressly,” they added the
phrase “reserved to the States respectively, or to the people”20—a decla-
ration of nondelegated sovereign power.  At the time, the concept of
popular sovereignty was understood to embrace the attendant princi-
ple that all power delegated away by the people would be strictly con-
strued.  This explains why the phrase “or to the people” was suggested
by the same man who wanted to add the term “expressly”—a fact
rather remarkably omitted from all prior accounts of the Tenth
Amendment.  Adding a declaration of the retained sovereign powers
of the people in the several states by definition limited the federal
government to only expressly delegated powers.  Properly understood,
“expressly delegated power” included the power to adopt those means
incident to advancing the expressly enumerated end, but required
these implied means to be clearly or directly related to the express
grant of power.  It required, in other words, that delegated power be
strictly construed.
In addition to presenting newly uncovered historical evidence
regarding the original meaning of the Tenth Amendment, this Article
challenges a number of commonly held assumptions regarding the
early history of the Constitution.  In particular, it establishes that it was
the  advocates of the proposed Constitution who consistently declared
that federal power would be narrowly construed.  This runs counter to
the frequent narrative which portrays strict constructionists as Antifed-
eralist dissenters and their descendents.21  It also suggests that, despite
conventional wisdom which suggests that the Constitution contains no
rules regarding the proper method of its interpretation, those who
debated and ratified the document believed the text did in fact con-
tain both express and implied rules of construction, particularly in
regard to delegated federal power.  Finally, this account calls into
question the generally unchallenged reasoning of John Marshall’s
opinion in McCulloch.  It appears that the original meaning of the
See infra notes 162–69 and accompanying text.
U.S. CONST. amend. X (emphasis added).
See SAUL CORNELL, THE OTHER FOUNDERS 187–94 (1999) (defining antifederal-
ism at various moments throughout the evolving tradition of dissenting public dis-
course); JOHNSON, RIGHTEOUS ANGER,  supra note 6, at 175.

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omitted term “expressly” is quite different than Chief Justice Marshall
would have us believe.
Following a brief introduction to the methodology employed in
this Article, Part I explores the historical background to the framing
of the Tenth Amendment and the Bill of Rights.  Reacting against the
constricted scope of congressional power under the Articles of Con-
federation, the members of the Philadelphia Convention presented a
Constitution with an expansive degree of federal authority, including
the power to enact all laws necessary and proper to advance enumer-
ated responsibilities.22  When the proposed Constitution was submit-
ted to the states, however, concerns immediately arose that the
Constitution delegated unchecked authority into the hands of the fed-
eral government and imperiled the independent and sovereign exis-
tence of the people in the several states.  In response, advocates of the
Constitution assured the ratifiers in the state conventions that Con-
gress would have only expressly enumerated powers.  This was not a
denial of implied federal power, but an assurance that those implied
powers would be limited to those necessarily incident to the express
grant of authority.  Strict construction of delegated power was an
inherent aspect of popular sovereignty, a political theory which
assumed that power delegated by a sovereign should be narrowly
Part II focuses on the framing and original understanding of the
Tenth Amendment.  Along with their notice of ratification, most of
the state conventions either proposed amendments which would
restrict the new Congress to expressly enumerated powers or submit-
ted “declarations” indicating their understanding that this principle
already informed the Constitution.  Delivering on a promise made to
the Virginia convention, James Madison proposed a Bill of Rights,
including early drafts of the Ninth and Tenth Amendments.  Unlike
Article II of the Articles of Confederation, Madison’s proposed Tenth
Amendment omitted the term “expressly” and he successfully turned
aside efforts to add that term to the final language of the Amend-
ment.  Although Madison’s speeches and letters indicate that he
feared adding the term “expressly” might erroneously suggest that
Congress had no implied powers whatsoever, he nevertheless agreed
with the idea that the Constitution granted only “expressly delegated”
(and thus narrowly construed) authority.  Madison thereby joined the
majority of Congress in voting to add the language of popular sover-
eignty to both the Ninth and Tenth Amendments, thus ensuring that
federal power would be understood as having been delegated to the
See U.S. CONST. art. I, § 8, cl. 18.

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government by the people, thereby calling for a limited construction
of the grant.
Part III explores the post-adoption understanding of the Tenth
Amendment and the emerging struggle between nationalists like Alex-
ander Hamilton and John Marshall and men like James Madison and
St. George Tucker who insisted on standing by the promises made to
the state ratifying conventions.  The divide emerged even before the
adoption of the Bill of Rights with the debate over the First Bank of
the United States.  Taking a far broader view of federal power than he
had during the ratification debates, Hamilton now argued that the
Bank fell within the necessary and proper powers of Congress.
Madison, on the other hand, insisted that the Bank violated the prin-
ciple of expressly delegated power—a principle properly relied upon
by the ratifiers in the state conventions.  Before the end of first decade
of the Constitution, the struggle over the proper interpretation of fed-
eral power reached a climax in the controversy surrounding the Alien
and Sedition Acts.  Relying on arguments startlingly similar to those
upon which Marshall would rely in McCulloch, defenders of the Sedi-
tion Act pointed to the omission of the term “expressly” from the
Tenth Amendment as evidence of broadly delegated federal power.
In response, men from the founding generation like John Page and
St. George Tucker insisted that the adoption of the Ninth and Tenth
Amendments established the principle of expressly delegated power,
despite the omission of the word.  Although the Federalists’ national-
ist approach fell out of favor with the dramatic victory of the Republi-
cans in the election of 1800, Marshall revived the same theory two
decades later in decisions like McCulloch and  Gibbons v. Ogden.23  Mar-
shall’s broad interpretation of federal power (and narrow view of the
Tenth Amendment) faded upon his death, only to be restored at the
time of the New Deal.
This Article concludes with an analysis of James Madison’s “mid-
dle way.”  Rejecting both the radical states’ rights position and the
consolidating nationalist position of men like Marshall and Hamilton,
Madison advocated a limited construction of federal power—one that
he believed had been promised to the parties that ratified the Consti-
tution.  Even taking into consideration the adoption of the Four-
teenth Amendment, an originalist reading of the Tenth Amendment
which tracks Madison’s reading of the clause would place the contem-
porary Court’s federalism jurisprudence on firmer ground, both in
terms of the Constitution’s text and historical understanding.
22 U.S. (9 Wheat.) 1 (1824).

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This Article employs the interpretive methodology of originalism.
The goal is to identify—to the extent possible—the likely original
meaning of the Tenth Amendment.  Unlike earlier iterations of
originalism which sought the original intent of the Framers, most
originalists today seek the original understanding of those who
debated and ratified the constitutional text.24  Accordingly, although
evidence of the private intent of the Framers is relevant to under-
standing the likely public meaning of the text, the focus here is on
determining the likely meaning of the Amendment as it was received
by its ratifiers—those with the sovereign authority to establish the text
as fundamental law.25
This is not a new idea.  The man primarily responsible for the
Constitution and the Bill of Rights, James Madison, insisted that the
document be interpreted according to the understanding of its
ratifiers.  According to Madison:
[W]hatever veneration might be entertained for the body of men
who formed our Constitution, the sense of that body could never be
regarded as the oracular guide in expounding the Constitution.  As
the instrument came from them it was nothing more than the draft
of a plan, nothing but a dead letter, until life and validity were
breathed into it by the voice of the people, speaking through the
several State Conventions.  If we were to look, therefore, for the
meaning of the instrument beyond the face of the instrument, we
must look for it, not in the General Convention, which proposed,
but in the State Conventions, which accepted and ratified the
See Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 620
Although all contemporary originalists seek to identify the original under-
standing of the ratifiers, the effort is particularly important for popular sover-
eignty–based originalism, a normative theory of constitutional interpretation which
maintains that we ought to follow the meaning of the text as it was understood by the
people who added it to the Constitution. See  KEITH E. WHITTINGTON, CONSTITU-
TIONAL INTERPRETATION 110–59 (1999); see also Kurt T. Lash, Originalism, Popular Sov-
ereignty and 
Reverse Stare Decisis, 93 VA. L. REV. 1437, 1444–48 (2007) (arguing that
because the Constitution and its amendments are the product of an “independent
and supermajoritarian process by which certain legal norms can be entrenched, or
immunized, from the ordinary political process,” the Court ought to invalidate “[a]ny
legislative action that diverges from this higher law”).
5 ANNALS OF CONG. 776 (1796) (statement of Rep. Madison).

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Identifying the original meaning does not necessarily establish
contemporary meaning.  Not only might the original scope of an
amendment have been significantly affected by later amendments, any
one of a number of normative theories maintain that original under-
standing need not (or ought not) be determinative for contemporary
interpretations of the Constitution.27  Most theories of contemporary
constitutional interpretation, however, consider original understand-
ing to be at least relevant to the modern understanding of the
Finally, readers should be aware that the available historical
record regarding the original Bill of Rights, particularly in regard to
the Ninth and Tenth Amendments, has dramatically increased over
the past few years.  Much of this evidence calls into question a number
of longstanding assumptions regarding the role of federalism in the
original drafting and ratification of the Constitution and the Bill of
Rights.29  This Article builds upon and extends this newly expanded
historical record.
See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1804–05
Once associated with the political goals of the right, the originalist enterprise
has come to be embraced by a wide spectrum of constitutional theorists.  Some of the
most influential liberal constitutional works of the 1980s and 1990s employed sophisti-
cated originalist analysis. See 1 BRUCE  ACKERMAN, WE THE  PEOPLE: FOUNDATIONS
(1998);  AKHIL  REED  AMAR, THE  BILL OF  RIGHTS (1998).  Recent originalist work by
libertarian, liberal, and federalist scholars have all shed important light on the origi-
nal understanding of the Constitution. See RANDY E. BARNETT, RESTORING THE  LOST
(2004); Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291
In a series of recent articles, I have presented a significant body of previously
unknown or unrecognized evidence regarding the original understanding and tradi-
tional application of the Ninth and Tenth Amendments. See Kurt T. Lash, The Lost
Jurisprudence of the Ninth Amendment
, 83 TEX. L. REV. 597 (2005) [hereinafter Lash, Lost
]; Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX.
L. REV. 331 (2004) [hereinafter Lash, Original Meaning]; Kurt T. Lash, On Federalism,
Freedom, and the Founders’ View of Retained Rights: A Reply to Randy Barnett
, 60 STAN. L.
REV. 969 (2008); Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60
STAN. L. REV. 895 (2008) [hereinafter Lash, Textual-Historical Theory].  For a counter-
reading of some of this evidence, see Randy E. Barnett, Kurt Lash’s Majoritarian Diffi-
culty: A Response to 
A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L.
REV. 937 (2008); Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85
TEX. L. REV. 1, 4–5, 21–76 (2006).

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The Traditional Story
Contemporary accounts of the Tenth Amendment generally
focus on the tug-of-war between the Antifederalists who wanted to
restrict the scope of federal power, and the Federalists, who wanted to
avoid repeating the problems with the Articles of Confederation.30
Under Article II of the Articles, the states retained all power, jurisdic-
tion, and rights not expressly delegated to the federal government.31
The Constitution proposed by the Philadelphia Convention, however,
had no such reservation clause.  The omission raised immediate con-
cerns among both the enemies and the tentative friends of the Consti-
tution.  Antifederalists opposed the very idea of a strong centralized
government.32  But even those otherwise disposed to be in favor of a
new federal government nevertheless balked at the lack of any provi-
sion explicitly limiting the scope of its power.33
In response, Federalists insisted that Congress could never claim
any powers beyond those listed in the Constitution.  Adding particular
restrictions was therefore unnecessary.34  As far as the old Article II
There are numerous excellent (if incomplete) accounts of the history behind
the adoption of the Tenth Amendment.  One of the best is Charles A. Lofgren, The
Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Inten-
,  in  CONSTITUTIONAL  GOVERNMENT IN  AMERICA 331 (Ronald K.L. Collins ed.,
AND THE STATES 39–44 (2006); Jack N. Rakove, American Federalism: Was There an Origi-
nal Understanding?
at 107.  For a general account of the adoption of the Bill of Rights, see LEONARD W.
See  ARTICLES OF  CONFEDERATION art. II (U.S. 1781) (“Each state retains . . .
every power, jurisdiction and right, which is not by this confederation expressly dele-
gated to the United States, in Congress assembled.”).  Article II did not completely
hamstring the government.  Congress managed, for example, to find the authority to
charter a national bank under the Articles of Confederation, despite the lack of a text
expressly granting such authority. See KILLENBECK,  supra note 1, at 11.
See, e.g.,  Essays of Brutus No. 1, N.Y.J., Oct. 18, 1787, at 2, reprinted in 2 THE
COMPLETE  ANTI-FEDERALIST 363, 367 (Herbert J. Storing & Murray Dry eds., 1981)
(arguing that the proposed central government would exercise its commerce power
“to annihilate all the state governments, and reduce this country to one single govern-
ment”);  Essays of an Old Whig (VI), INDEP. GAZETTEER (Phila., Pa.), Nov. 24, 1787, at 2,
reprinted in 3 THE COMPLETE ANTI-FEDERALIST,  supra, at 38, 43 (arguing that granting
Congress the power to tax would “annihilate the individual states”).
See infra notes 85–86 and accompanying text (discussing the concerns of
Edmund Randolph).
Not only was a bill unnecessary given the doctrine of enumerated powers, but
moreover adding a list of enumerated rights, Federalists argued, might raise a danger-
ous presumption of otherwise unlimited federal power. See THE FEDERALIST NO. 84, at
519 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“I go further and affirm that
bills of rights, in the sense and to the extent in which they are contended for, are not

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[vol. 83:5
was concerned, Federalists pointed out that this provision had placed
the national government in the untenable position of either doing
nothing, or appearing to intentionally flout the requirement that all
laws find express authorization in the Articles of Confederation.  As
James Madison argued in Federalist No. 44:
Had the convention [followed the] method of adopting the
second article of Confederation, it is evident that the new Congress
would be continually exposed, as their predecessors have been, to
the alternative of construing the term “expressly” with so much rigor
as to disarm the government of all real authority whatever, or with
so much latitude as to destroy altogether the force of the
As Alexander Hamilton explained, if the Framers of the Constitution
had added a provision like Article II, then Congress would have been
“reduced to the dilemma either of supposing that deficiency, prepos-
terous as it may seem, or of contravening or explaining away a provi-
sion, which has been of late a repeated theme of the eulogies of those
who oppose the new Constitution.”36
Even if Madison and Hamilton were correct about the need to
avoid repeating the language of Article II, the fact remained that the
Constitution as originally proposed lacked any provision expressly lim-
iting the scope of federal power—an omission especially disconcerting
for those who also questioned the omission of a Bill of Rights.  In
order to ensure ratification and head off a second constitutional con-
vention, Madison and the Federalists promised that, should the pro-
posed Constitution be ratified, adding a Bill of Rights would be one of
the first tasks of the new Congress.37  The promise proved sufficient to
garner the requisite votes for ratification and Madison kept his word
by submitting a list of proposed amendments to the new House of
Representatives.38  One of these was a draft of what would become our
Tenth Amendment—a provision clearly mirroring Article II of the
Articles of Confederation, though lacking the restrictive term
only unnecessary in the proposed Constitution but would even be dangerous. . . .  For
why declare that things shall not be done which there is no power to do?”); see also
THE  COMPLETE  BILL OF  RIGHTS 647–48 (Neil H. Cogan ed., 1997) (reporting the
remarks of Mr. Wilson suggesting that a bill of rights was “unnecessary” and
THE FEDERALIST NO. 44 (James Madison), supra note 34, at 284; see also STANLEY
ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 231 (1993) (discussing the role of
Federalist No. 44 in the later controversy over the Bank of the United States).
THE FEDERALIST NO. 21 (Alexander Hamilton), supra note 34, at 139.
See LEVY,  supra note 30, at 30–31.
See id. at 32–35.

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“expressly” in describing the powers delegated to Congress: “[t]he
powers not delegated by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively.”39  When the House
debated the proper drafting of the Tenth Amendment, some mem-
bers attempted to restore the language of Article II.  In an exchange
widely cited in support of John Marshall’s reading of the Tenth
Amendment, James Madison turns aside Thomas Tucker’s attempt to
add the term “expressly” to the Amendment:
Mr.  TUCKER proposed to amend the proposition, by prefixing
to it “all powers being derived from the people.”  He thought this a
better place to make this assertion than the introductory clause of
the Constitution, where a similar sentiment was proposed by the
committee.  He extended his motion also, to add the word
“expressly,” so as to read “the powers not expressly delegated by this
Mr.  MADISON objected to this amendment, because it was
impossible to confine a Government to the exercise of express pow-
ers; there must necessarily be admitted powers by implication,
unless the constitution descended to recount every minutiae.  He
remembered the word “expressly” had been moved in the conven-
tion of Virginia, by the opponents to the ratification, and, after full
and fair discussion, was given up by them, and the system allowed to
retain its present form.
. . . .
Mr. TUCKER did not view the word “expressly” in the same light with
the gentleman who opposed him; he thought every power to be expressly given
that could be clearly comprehended within any accurate definition of the gen-
eral power.

Mr. TUCKER’S motion being negatived,
Mr.  CARROLL proposed to add to the end of the proposition,
“or to the people;” this was agreed to.40
1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
Id. (emphasis added).  On August 21, there was a second unsuccessful attempt
to restore the term “expressly”:
The ninth proposition Mr. GERRY proposed to amend by inserting the
word “expressly,” so as to read “the powers not expressly delegated by the
Constitution, nor prohibited to the States, are reserved to the States respec-
tively, or to the people.”  As he thought this an amendment of great impor-
tance, he requested the yeas and nays might be taken.  He was supported in
this by one-fifth of the members present; whereupon they were taken, and
were as follows:
YEAS—Messrs. Burke, Coles, Floyd, Gerry, Grout, Hathorn, Jackson,
Livermore, Page, Parker, Partridge, Van Rensselaer, Smith, (of South Caro-
lina,) Stone, Sumter, Thatcher, and Tucker—17.

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In the end, the House on two separate occasions rejected an
attempt to add the restrictive term “expressly” to the Tenth Amend-
ment.41  Whatever one makes of this history, one cannot say the omis-
sion was inadvertent.  But what can  one make of it?  Despite such a
clear and considered rejection, we know that there are numerous
examples of Founders, including Hamilton and Madison, embracing
the very term they so vigorously fought to exclude from the Constitu-
tion.  Getting a handle on this mystery requires a closer look at both
the history of Article II of the Articles of Confederation and the
debates surrounding the ratification of the Constitution.42
Article II of the Articles of Confederation
After formally announcing the break with England, the newly
“free and independent States”43 ultimately organized themselves into
a loosely formed confederacy under the Articles of Confederation.44
The original draft of what would become Article II contained a gen-
eral reservation of nondelegated power to the states: “[e]ach Colony
shall retain and enjoy as much of its present Laws, Rights and Cus-
toms, as it may think fit, and reserves to itself the sole and exclusive
Regulation and Government of its internal police, in all matters that
shall not interfere with the Articles of this Confederation.”45
Thomas Burke of North Carolina objected that this proposed lan-
guage insufficiently protected the sovereign states.  As he explained in
a letter to North Carolina Governor Richard Caswell:
NAYS—Messrs. Ames, Benson, Boudinot, Brown, Cadwalader, Carroll,
Clymer, Fitzsimons, Foster, Gale, Gilman, Goodhue, Hartley, Heister, Law-
rence, Lee, Madison, Moore, Muhlenburg, Schureman, Scott, Sedgwick,
Seney, Sherman, Sylvester, Sinnickson, Smith, (of Maryland,) Sturges, Trum-
bull, Vining, Wadsworth, and Wynkoop—32.
Id. at 767–68.
The additional attempt was made on August 21. See id.
An easy, if cynical, explanation would be that the advocates of the Constitution
engaged in dissembling.  The historical record, however, reveals how these seemingly
conflicting statements can be reconciled. See infra Part II.D.  Even if one accepts the
dissembling explanation, however, the ratifiers were entitled to treat Federalist expla-
nations of the Constitution as made in good faith.  For an example of the “dis-
sembling” reading of the statements made by the Federalists during the ratification
debates, see JOHNSON, RIGHTEOUS ANGER,  supra note 6, at 174–75.
See ARTICLES OF CONFEDERATION art. II (U.S. 1781).  Although the Articles were
drafted and adopted by the Second Continental Congress in 1777, they were not for-
mally ratified until 1781.
5  JOURNALS OF THE  CONTINENTAL  CONGRESS 1774–1789, at 547 (Worthington
Chauncey Ford ed., 1906).

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[The original draft of Article II] expressed only a reservation of the
power of regulating internal police, and consequently resigned
every other power.  It appeared to me that this was not what the
States expected, and, I thought, it left it in the power of the future
Congress or General Council to explain away every right belonging
to the States, and to make their own power as unlimited as they
please.  I proposed, therefore, an amendment, which held up the
principle, that all sovereign Power was in the States separately, and
that particular acts of it, which should be expressly enumerated,
would be exercised in conjunction, and not otherwise; but that in
all things else each State would Exercise all the rights and powers of
sovereignty, uncontrolled. . . .  [I]n the End however the question
was carried for my proposition, Eleven ayes, one no, and one
Burke sought to reverse the presumption of the originally proposed
language from implying that “all power not expressly retained is
granted,” to “all power not expressly granted is retained.”  As
amended per Burke’s suggestion, here is the final version of Article II:
“[e]ach State retains its sovereignty, freedom, and independence, and
every power, jurisdiction, and right, which is not by this confedera-
tion, expressly delegated to the United States, in Congress
Article II’s demand that all federal acts have express authoriza-
tion in the Articles could be construed in different ways.  For example,
it could mean that federal acts needed to be expressly authorized or
clearly inferable from an express authorization.  A narrower construc-
tion of the text, however, would seem to deny Congress the authority
to take any action not specifically mentioned in the text of the Arti-
cles.  For example, opponents of the Bank of North America relied
upon a strict reading of Article II in arguing that Congress had
exceeded its “expressly delegated” powers.48  As Alexander Hamilton
complained in The Federalist, a strict reading of Article II forced Con-
gress to choose between utter immobility or blatant disregard of an
express restriction on the delegated powers of Congress.49  Not sur-
Letter from Thomas Burke, Delegate, to Richard Caswell, Governor (Apr. 29,
1777),  in 6 LETTERS OF DELEGATES TO CONGRESS 671, 672 (Paul H. Smith et al. eds.,
reprinted in 1 COLLECTED WORKS OF JAMES WILSON 60, 65 (Kermit L. Hall & Mark David
Hall eds., Liberty Fund 2007).  For a defense of Congress’ power to create the Bank of
North America, despite the restrictions of the Articles of Confederation, see id. at
According to Hamilton in Federalist No. 21:

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[vol. 83:5
prisingly, when it came time to draft a new constitution, the delegates
of the Philadelphia Convention declined to add anything like the
problematic Article II.
The omission of a provision like Article II, however, left the pro-
posed Constitution without any express limitation on the construction
of federal authority.  Unlike most state constitutions, the Federal Con-
stitution did not contain a Bill of Rights.  Instead, provisions like the
Necessary and Proper Clause appeared to affirmatively authorize
expansive interpretations of federal power.50  According to the Anti-
federalist writer Centinel, “[T]he omission of such a declaration [as
Article II] now, when such great devolutions of power are proposed,
manifests the design of reducing the several States to shadows.”51
Antifederalist broadsides repeatedly raised concerns about unlimited
federal power and the potential “consolidation” of the states.52
The next most palpable defect of the existing Confederation is the total
want of a SANCTION to its laws.  The United States as now composed have
no power to exact obedience, or punish disobedience to their resolutions,
either by pecuniary mulcts, by a suspension or divestiture of privileges, or by
any other constitutional means.  There is no express delegation of authority
to them to use force against delinquent members; and if such a right should
be ascribed to the federal head, as resulting from the nature of the social
compact between the States, it must be by inference and construction in the
face of that part of the second article by which it is declared “that each State
shall retain every power, jurisdiction, and right, not expressly delegated to
the United States in Congress assembled.”
THE  FEDERALIST  NO. 21 (Alexander Hamilton), supra note 34, at 138–39.  Hamilton
was, of course, exaggerating in order to support his argument against keeping the
Articles.  Under the Articles, Congress had managed to establish the Bank of North
America despite the lack of any express authorization.  Although men like James
Madison believed the Bank to be beyond the delegated authority of the Articles,
others like James Wilson argued that the limitation to expressly delegated powers
nevertheless left room for the establishment of the Bank. See WILSON,  supra note 48,
at 60–79.
See THE FEDERALIST NO. 33 (Alexander Hamilton), supra note 34, at 203 (refer-
ring to the Necessary and Proper Clause as “the sweeping clause”).
Letters of Centinel No. 2, MD. J. (Balt., Md.), Nov. 2, 1787, at 1, reprinted in 2 THE
COMPLETE ANTI-FEDERALIST, supra note 32, at 143, 146–47.
According to the Antifederalist writer Brutus:
How far the clause in the 8th section of the 1st article may operate to do
away all idea of confederated states, and to effect an entire consolidation of
the whole into one general government, it is impossible to say.  The powers
given by this article are very general and comprehensive, and it may receive a
construction to justify the passing almost any law.  A power to make all laws,
which shall be necessary and proper, for carrying into execution, all powers
vested by the constitution in the government of the United States, or any
department or officer thereof, is a power very comprehensive and definite,

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The Federalist Response
The widespread criticism of the failure to include specific limits
on federal power placed the Federalists on the defensive, having to
explain why the proposed Constitution did not pose the danger
insisted upon by its opponents.  The defense of the proposed Consti-
tution took various forms, but a theme running throughout the Feder-
alists’ apologies was that there was no need to add a clause like Article
II of the Articles of Confederation: the federal government would
have no more than expressly delegated powers.  According to Charles
Pinckney in a speech defending the proposed Constitution before the
South Carolina House of Representatives in January 1788:
The distinction which has been taken between the nature of a fed-
eral and state government appeared to be conclusive—that in the
former, no powers could be executed, or assumed, but such as were
expressly delegated; that in the latter, the indefinite power was
given to the government, except on points that were by express
compact reserved to the people.53
In Massachusetts, newspapers published Roger Sherman’s Obser-
vations on the New Federal Constitution, and the Alterations That Have Been
Proposed as Amendments
, in which he explained: “The powers vested in
the federal government are particularly defined, so that each State
still retains its sovereignty in what concerns its own internal govern-
ment, and a right to exercise every power of a sovereign State, not
expressly delegated to the government of the United States.”54
and may, for ought I know, be exercised in a such manner as entirely to
abolish the state legislatures.
Essays of Brutus No. I,  supra note 32, at 367; see also CORNELL,  supra note 21, at 29–30
(listing consolidation as one of the main issues recurring in Antifederalist writings
based on the concern that “consolidated government undermines both republican-
STATES SENATE 136 (2004) (naming “consolidation” of the sovereign states as one of
the key Antifederalist concerns during the ratification debates); GORDON S. WOOD,
THE CREATION OF THE AMERICAN REPUBLIC 524–32 (W.W. Norton ed., 1972) (discuss-
ing Antifederalist fears of consolidation).
4 ELLIOT’S DEBATES,  supra note 9, at 259–60 (reporting the speech of Charles
Pinckney before the South Carolina House of Representatives on January 16, 1788).
Pinckney’s speech in its entirety was reprinted in South Carolina and Pennsylvania
newspapers. See  Legislative Proceedings, CITY  GAZETTE (Charleston, S.C.), Jan. 25,
1788, at 2; Legislative Proceedings, PA. PACKET (Phila., Pa.), Feb. 21, 1788, at 2.
A Citizen of New Haven [Roger Sherman], Observations on the New Federal Con-
stitution, and the Alterations That Have Been Proposed as Amendments (pts. 1 & 2), SALEM
MERCURY, June 30, 1789, at 1, SALEM MERCURY, July 7, 1789, at 1 [hereinafter Observa-

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In the same Massachusetts newspaper, the editors published an
essay rejecting Antifederalist concerns about unlimited power.
According to the editorial, “The constitution defines the powers of
Congress; & every power not expressly delegated to that body, remains
in the several state legislatures.”55  In New Jersey, the local newspaper
published an essay defending the proposed Constitution and declar-
ing that “in America (thanks to the interposing providence of GOD!)
the people hold all power, not by them expressly delegated to individ-
uals, for the good of the whole.”56  In Virginia, Alexander White pub-
lished  To the Citizens of Virginia, in which he declared that “should
Congress attempt to exercise any powers which are not expressly dele-
gated to them, their acts would be considered as void, and
All of these declarations that Congress would have only expressly
delegated powers came from advocates of the proposed Constitu-
tion.58  Despite conventional wisdom, it was not the ultimately unsuc-
cessful Antifederalists who originally insisted on strict construction of
expressly delegated federal power.  Narrow interpretation of federal
power emerged as a promise by those most interested in ratifying the
The State Conventions
In the state ratifying conventions, the Federalists repeatedly
insisted that the federal government would have only expressly dele-
gated powers.  In the North Carolina convention, Archibald Maclaine
defended the decision to omit a Bill of Rights on the ground that
the powers of Congress are expressly defined; and the very defini-
tion of them is as valid and efficacious a check as a bill of rights
could be, without the dangerous implication of a bill of rights.  The
powers of Congress are limited and enumerated. . . .  It is as plain a
thing as possibly can be, that Congress can have no power but what
we expressly give them.”59
Editorial, SALEM MERCURY, Jan. 15, 1788, at 1.
A Correspondent, N.J.J. (Elizabethtown, N.J.), Dec. 19, 1787, at 2.
Alexander White, To the Citizens of Virginia, WINCHESTER VA. GAZETTE, Feb. 29,
TION 438, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988).
For a discussion of the Federalists’ use of “expressly delegated powers” in sup-
port of the proposed Constitution, see WOOD,  supra note 52, at 539–43.  As Wood
illustrates, the concept of expressly delegated power was inextricably linked to the
emerging concept of popular sovereignty. See id.
4 ELLIOT’S DEBATES,  supra note 9, at 140–41 (reporting the remarks of Archi-
bald Maclaine before the North Carolina convention on July 28, 1788).

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The president of the convention, Governor Samuel Johnston, agreed
and insisted that “[t]he Congress cannot assume any other powers
than those expressly given them, without a palpable violation of the
Sounding a theme that would be repeated throughout the state
conventions, former member of the Philadelphia Convention and
future Supreme Court Justice James Iredell stressed the link between
the people’s retained sovereignty and expressly delegated power:
Of what use therefore, can a bill of rights be in this Constitution,
where the people expressly declare how much power they do give,
and consequently retain all they do not?  It is a declaration of partic-
ular powers by the people to their representatives, for particular
purposes.  It may be considered as a great power of attorney, under
which no power can be exercised, but what is expressly given.  Did
any man ever hear, before, that at the end of a power of attorney it
was said that the attorney should not exercise more power than was
there given him?61
Although in The Federalist Alexander Hamilton had stressed the
need to abandon Article II, in his arguments before the New York
convention Hamilton nevertheless assured the convention that
“whatever is not expressly given to the federal head, is reserved to the
members.  The truth of this principle must strike every intelligent
mind.”62  According to Hamilton, the sovereign people of the states
“have already delegated their sovereignty and their powers to their
several governments; and these cannot be recalled, and given to
another, without an express act.”63  Hamilton’s statement illustrates the
link between popular sovereignty and the narrow construction of
expressly delegated power—a link that ultimately informed both the
Ninth and Tenth Amendments.
Id. at 142 (reporting the statement of Samuel Johnston before the North Caro-
lina convention on July 22, 1788).
Id. at 148–49.  In spite of the Federalists’ best efforts, a majority of the conven-
tion remained unconvinced and voted against the proposed Constitution 184 to 84.
See id. at 250.  North Carolina ultimately ratified only after Congress drafted and cir-
culated for ratification a proposed Bill of Rights. See Chronology, 1786–1790, in 13
(John P. Kaminski et al. eds., 1981).
2 ELLIOT’S DEBATES,  supra note 9, at 362 (reporting the remarks of Alexander
Hamilton to the New York ratifying convention on June 28, 1788).
Id. at 362–63 (emphasis added).

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Sovereignty and the Construction of Delegated Power
When the people have formed a Constitution, they retain those
rights which they have not expressly delegated.
—James Madison64
Although far less important in constitutional argument today, at
the time of the Founding (and for many decades afterwards) the ques-
tion of delegated sovereignty was of critical importance in determin-
ing the nature and extent of federal power.65  The concept of
delegated sovereign power was not a new idea in 1787; the subject was
as old as international law itself.  It was a matter of historical fact that
sovereign entities occasionally delegated away aspects of their sover-
eign authority in order to gain the benefits of a treaty or compact
between independent nations.  In a treaty between sovereign authori-
ties, however, the sovereign was presumed to have delegated away only
those powers expressly enumerated in the treaty—and the delegation
was to be strictly construed.
At the time of the Founding, this theory of strictly construed dele-
gated power had been recently articulated by one of the most influen-
tial legal theorists of that generation.  In 1758, Emmerich de Vattel
published his Le Droit des Gens (“The Law of Nations”).66  Here, Vattel
explained that because sovereigns are presumed to have retained all
sovereign powers not expressly delegated away, delegations of power
were to be strictly construed.67  The founding generation was deeply
influenced by Vattel’s work and his treatise would continue to be well
cited in legal scholarship and judicial opinions for the next one hun-
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
Contemporary debates regarding the proper conception of state sovereignty
play a role in the Court’s Eleventh Amendment jurisprudence and in the so-called
“commandeering” cases limiting the power of the federal government to force states
to enact or enforce federal policy. See generally Printz v. United States, 521 U.S. 898
(1997) (holding unconstitutional the Brady Act’s interim provision requiring local
law enforcement to conduct background checks); U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) (giving various opinions considering the nature of state sover-
eignty at the time of the Founding); New York v. United States, 505 U.S. 144 (1992)
(holding unconstitutional the “take-title” provision of the Low-Level Radioactive
Waste Policy Amendments which required states to dispose of their waste or take title
and incur damages arising from it).
EMMERICH DE  VATTEL,  THE  LAW OF  NATIONS (Charles G. Fenwick trans., Car-
negie Inst. of Wash. 1916) (1758).
See id. bk. I, ch. 2, § 16 (commenting on the duty of self-preservation); see also
id. bk. II, §§ 305, 308 (describing the need to narrowly construe “odious” delegations
of sovereign power).

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dred years.68  In the first constitutional treatise, St. George Tucker’s
1803 View of the Constitution of the United States,69 Tucker embraced Vat-
tel’s reasoning as analogous to the situation of the several states in the
aftermath of the American Revolution.70  As newly “sovereign and
independent” entities, the states retained all power, jurisdiction, and
rights not “expressly delegated” under the Federal Constitution.
Although this principle had been expressly declared in Article II of
the Articles of Confederation, the idea was simply “a declaration of
the law of nations.”71
For, no free nation can be bound by any law but [its] own will; and
where that will is manifested by any written document, as a conven-
tion, league, treaty, compact, or agreement, the nation is bound,
only according as that will is expressed in the instrument by which it
binds itself.  And as every nation is bound to preserve itself, or, in
other words, [its] independence; so no interpretation whereby its
destruction, or that of the state, which is the same thing, may be
hazarded, can be admitted in any case where it has not, in the most
express terms
, given [its] consent to such an interpretation.72
Citing Vattel’s theory of sovereign power throughout his analysis of
the Constitution,73 St. George Tucker argued that powers delegated
away by the people of the several states ought to be strictly con-
strued.74  Tucker’s work was extremely influential and remained the
predominant treatise on the Constitution until well into the nine-
teenth century.75
For discussions of Vattel’s influence on the founding generation, see DANIEL G.
St. George Tucker, View of the Constitution of the United Statesin 1 BLACKSTONE’S
COMMENTARIES app. at 140 (St. George Tucker ed., Phila., William Birch Young &
Abraham Small 1803).
See St. George Tucker, Of the Unwritten, or Common Law, of England,  in 1 BLACK-
STONE’S COMMENTARIES,  supra note 69, app. at 378, 407.
Id. at 408.
Id. at 423.
In addition to the above cited pages, see, for example, Tucker, supra note 69,
app. at 151 n.* (linking the work of Vattel with the Tenth Amendment); see also id. at
187 (citing Vattel in support of retained state sovereignty).  There are many other
examples throughout the work.
See id. at 154 (“[T]he powers delegated to the federal government, are, in all
cases, to receive the most strict construction that the instrument will bear, where the
rights of a state or of the people, either collectively, or individually, may be drawn in
According to historian Saul Cornell, Tucker’s Commentaries was “an instant
publishing success” and “became the definitive American edition of Blackstone until
midcentury.” CORNELL,  supra note 21, at 263.

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[vol. 83:5
Vattel wrote in a continental context in which sovereignty was
believed to reside in the person of the King, or at most the King-in-
Parliament.76  Political theorists in America, however, easily translated
his views of delegated sovereign power into a context in which the
people, not the people’s government, were considered the ultimate
source of sovereign power.  As Gordon Wood describes in his Creation
of the American Republic
, popular sovereignty gained widespread accept-
ance in colonial America in the period between the Revolution and
the adoption of the Constitution.77  American popular sovereignty dis-
tinguished between the people and their government, with the latter
serving as no more than the people’s agents, with no greater power
than that delegated to them by the people themselves.78  Following
the Revolution, the people of each state remained an independent
sovereign entity.79  These, then, were the sovereign people(s) who
debated and, ultimately, delegated away a portion of their sovereign
powers to the new federal government.
Tucker’s work has long been associated with the so-called “com-
pact theory” of the original Constitution—the theory that the Consti-
tution arose out of a compact between the several states, with each
retaining the right to secede at will.80  As such, Tucker’s work tends to
be lumped together with that of later, more radical states’ rights pro-
ponents such as Calhoun and the secessionists who constructed their
theories in an effort to protect the state-based institution of slavery.81
St. George Tucker, however, was an abolitionist82 and he wrote long
before the rise of radical states’ rights theorists like Calhoun and the
nullifiers in the 1820s and ’30s.  Far from representing the emergence
See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1431–32
(1987). See generally EDMUND S. MORGAN, INVENTING THE  PEOPLE 15, 17–77 (1988)
(describing how “the divine right of Kings [gave] way to the sovereignty of the
See WOOD,  supra note 52, at 599–600.
See generally 1 ACKERMAN, supra note 28, at 3–33 (describing the “dualist” Amer-
ican Constitution); KRAMER, supra note 28, at 6 (arguing that the founding generation
embraced the centrality of “the people” in its political ideology).
See THE DECLARATION OF INDEPENDENCE para. 31 (U.S. 1776) (“[T]hese united
Colonies are, and of Right ought to be Free and Independent States . . . .”).
See Nicholas Aroney, Formation, Representation and Amendment in Federal Constitu-
tions, 54 AM. J. COMP. L. 277, 308–09 (2006).
See, e.g., Earl M. Maltz, Majority, Concurrence, and Dissent: Prigg v. Pennsylvania
and the Structure of Supreme Court Decisionmaking, 31 RUTGERS L.J. 345, 358 (2000).
See St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual
Abolition of It, in the State of Virginia (1796), reprinted in ST. GEORGE TUCKER, VIEW OF
(Clyde N. Wilson ed., 1999).

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of a new and radical view of state autonomy, Tucker’s theory of
retained state sovereignty and limited express federal power echoed
the very arguments put forward by the advocates of the Constitution
in order to secure ratification.  This includes those Founders most
associated with expansive views of national authority.  For example, in
his remarks to the New York ratifying convention, Alexander Hamil-
ton explained in detail how the sovereign people of the several states
retained all aspects of sovereignty not expressly delegated to the fed-
eral government:
In the first formation of government, by the association of individu-
als, every power of the community is delegated, because the govern-
ment is to extend to every possible object; nothing is reserved, but
the inalienable rights of mankind: but, when a number of these
societies unite for certain purposes, the rule is different, and from
the plainest reason—they have already delegated their sovereignty
and their powers to their several governments; and these cannot be
recalled, and given to another, without an express act.  I submit to
the committee whether this reasoning is not conclusive.83
In sum, the concept of delegated sovereign power carried with it
the principle of strict construction of delegated authority.  All power
not expressly delegated was assumed to be retained by the sovereign.
This idea predated the Constitution and continued to inform consti-
tutional analysis well into the nineteenth century.
The Other Meaning of Expressly Delegated Powers
In advancing the theory of expressly delegated power, the Feder-
alists were not (and were not understood to be) claiming that Con-
gress would have no implied powers whatsoever.  Not only would this
be difficult to maintain in the face of the Necessary and Proper
Clause, it was a position affirmatively rejected by the advocates of the
Constitution.84  The theory of express powers was one of limited or
narrow construction of delegated authority.
For example, in the Virginia convention, Edmund Randolph
understood the advocates of the Constitution to be claiming that the
Constitution “gives no supplementary power; but only enables them to
make laws to execute the delegated powers.”85  Although this allowed
2 ELLIOT’S DEBATES,  supra note 9, at 362–63 (emphasis added) (reporting the
remarks of Alexander Hamilton to the New York ratifying convention on June 28,
See, e.g., THE FEDERALIST NO. 33 (Alexander Hamilton), supra note 34, at 201.
Edmund Randolph, Debate in the Virginia Convention (June 17, 1788), in 10

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[vol. 83:5
for the exercise of incidental powers, Randolph understood that these
powers would be limited to those means that were “necessary for the
principal thing
.”86  According to Roger Sherman, a member of the Phil-
adelphia Convention from Connecticut, “The powers vested in the
federal government are clearly defined, so that each state still retains
its sovereignty in what concerns its own internal government, and a
right to exercise every power of a sovereign state not particularly dele-
to the government of the United States.”87  In New York, Alexan-
der Hamilton had insisted that, due to the ultimate sovereignty of the
people of the United States, the federal government had only
expressly delegated powers and the New York convention included
the following declaration along with its notice of ratification:
[E]very Power, Jurisdiction and Right, which is not by the said Con-
stitution 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.88
The Rhode Island convention appended the same declaration (Con-
gress had only those powers clearly delegated) along with its own
notice of ratification.89  The same convention also proposed an
amendment declaring that “[t]he United States shall guarantee to
(John P. Kaminski et al. eds., 1993) [hereinafter 10 DOCUMENTARY  HISTORY OF THE
Id. at 1348 (emphasis added).
A Citizen of New Haven [Roger Sherman], Observations on the New Federal Con-
stitution, NEW HAVEN GAZETTE, Dec. 25, 1788, at 1, reprinted in ESSAYS ON THE CONSTI-
TUTION OF THE UNITED STATES 237, 238 (Paul Leicester Ford ed., N.Y., Burt Franklin
1970) (1892) (emphasis added).  According to Herbert Storing, this was a “rather
typical description of the Constitution.” See Herbert J. Storing, The ‘Other’ Federalist
Papers: A Preliminary Sketch
, 6 POL. SCI. REVIEWER 215, 222 (1976).
Amendments Proposed by the New York Convention (July 26, 1788), in CREAT-
ING THE BILL OF RIGHTS 21, 21–22 (Helen E. Veit et al. eds., 1991); see also 1 ELLIOT’S
DEBATES,  supra note 9, at 327–31 (reporting the ratification of New York on July 26,
See Ratification of the Constitution by the State of Rhode Island [hereinafter
UNITED  STATES OF  AMERICA 310, 316 (Wash., D.C., Dep’t of State 1894); see also  1
ELLIOT’S DEBATES,  supra note 9, at 334 (reporting the ratification of Rhode Island on
May 29, 1790); The Address and Reasons of Dissent of the Minority of the Convention of the
State of Pennsylvania to Their Constituents
, PA. PACKET (Phila., Pa.), Dec. 18, 1787, at 1
[hereinafter Reasons of Dissent], reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATI-
FICATION OF THE CONSTITUTION 617, 624 (Merrill Jensen et al. eds., 1976) (“That the
sovereignty, freedom, and independency of the several states shall be retained, and
every power, jurisdiction, and right which is not by this constitution expressly dele-
gated to the United States in Congress assembled.”).

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each state its sovereignty, freedom and independence, and every
power, jurisdiction and right, which is not by this Constitution
expressly delegated to the United States.”90
In sum, in order to counter concerns about unchecked federal
power, the advocates of the Constitution maintained that the Con-
gress would have no more than expressly delegated powers.  This did
not mean that Congress would have no implied powers whatsoever,
but that the implied means would be limited to those “clearly implied”
or “necessarily incident” to the enumerated power.  This rule of strict
construction of delegated power flowed from the fundamental princi-
ple of popular sovereignty: all powers delegated from a sovereign
authority must be strictly or narrowly construed.  As Tunis Wortman
wrote in his 1800 treatise on the liberty of the press:
The objects of federal jurisdiction are specifically defined.  The
powers vested in the general Government are such as are expressly
and particularly granted by the Constitution, or such as flow in obvi-
ous and necessary consequence from the authorities which are thus
expressly conferred.
Powers claimed by implication should be such as follow from
evident and necessary construction, and not in consequence of dis-
tant or conjectural interpretation.  Much latitude cannot be admit-
ted upon the occasion without endangering Public Liberty and
destroying the symmetry of our Political System.91
A Preexistent Principle
Federalist assertions that Congress had only expressly delegated
power were made throughout the states in every available medium,
including newspapers, pamphlets, public speeches, and legislative
debate.  All of this occurred, moreover, prior to the adoption of the
Tenth Amendment.  Accordingly, it is not surprising to find evidence
that even without the adoption of the Bill of Rights, the proper con-
struction of the original Constitution nevertheless included the princi-
ple of expressly delegated power.  As the Maryland Court of Appeals
explained in 1790, a year before the ratification of the Bill of Rights:
“Congress has no power but what is expressly delegated to them by the
Rhode Island Ratification, supra note 89, at 316.
OF THE  PRESS 212 (photo. reprint 2003) (1800).  Wortman goes on to cite the First,
Ninth, and Tenth Amendments as “relat[ing] to the immediate subject of discussion
[the power of the federal government to enact libel laws].” Id. at 220.  He also rejects
the idea that particular restrictions on power can be construed to imply otherwise
affirmative powers and cites the eleventh and twelfth articles of amendment as declar-
atory provisions that did not alter previous grants of power. See id. at 223–26.

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new government.  The states retain all power not delegated, and from
the exercise of which they are not restrained by the new
Even earlier, in June of 1789, the editors of the New York Packet
(which also published The Federalist) published Observations on the New
Federal Constitution, and the Alterations That Have Been Proposed as Amend-
.93  The editorial, which was published in Massachusetts as well as
New York, describes the Constitution as preserving the sovereignty of
the states and, accordingly, limiting federal authority to expressly enu-
merated powers: “[T]he powers vested in the federal government are
particularly defined, so that each State still retains its sovereignty in
what concerns its own internal government, and a right to exercise
every power of a Sovereign state, not expressly delegated to the gov-
ernment of the United States.”94
According to Federalist Robert Goodloe Harper during the 1804
House impeachment proceedings against Samuel Chase:
But it must be recollected, Mr. President, that the constitution is a
limited grant of power; and that it is of the essence of such a grant
to be construed strictly, and to leave in the grantors all the powers,
not expressly, or by necessary implication granted away.  In this
manner has the constitution always been construed and under-
stood: and although an amendment was made, for the purpose of
expressly declaring and asserting this principle, yet that amendment
was always understood by those who adopted it, and was repre-
sented by the eminent character who brought it forward, as a mere
declaration of a principle inherent in the constitution, which it was
proper to make, for the purpose of removing doubts and quieting
Harper spoke a decade after the adoption of the Constitution and the
Bill of Rights, and in the aftermath of a grand public debate regarding
Donaldson v. Harvey, 3 H. & McH. 12, 19 (Md. 1790).  The opinion is by Judge
Jeremiah Townley Chase, not to be confused with Judge Samuel Chase who served on
the same Maryland court.  Judge Chase had voted against the proposed Constitution
at the Maryland convention due to concerns about the impact on states’ rights. See
CHARLES W. SMITH, JR., ROGER B. TANEY 7 (1936).  Although Chase’s antifederalism
no doubt influenced his reading of the Constitution, it nevertheless echoed assur-
ances made by Federalists during the ratification debates.
A Citizen of New Haven [Roger Sherman], Observations on the New Federal Con-
stitution, and the Alterations That Have Been Proposed as Amendments (pts. 1 & 2), N.Y.
PACKET, Mar. 20, 1789, at 3, N.Y. PACKET, Mar. 24, 1789, at 2.
Id.;  Observations, SALEM MERCURY,  supra note 54.
Press 1970) (1805).

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the proper construction of federal power.96  His views nevertheless
coincide with the original arguments used to support the ratification
of the Constitution.  As we shall see, James Madison himself insisted,
even before the addition of the Bill of Rights, that the implied powers
of Congress were to be strictly construed on the grounds that the state
conventions had been promised that Congress had only expressly del-
egated power.97  The restrictions in the Bill were to be added ex
abundanti cautela
—for greater caution.
The State Convention Declarations and Proposed Amendments
Despite the Federalists’ repeated assurances that the proposed
Constitution granted only limited or expressly delegated power, many
remained unconvinced.  Some Antifederalists, of course, were unalter-
ably opposed to the Constitution.98  Others, however, were open to
being persuaded to be in favor of the Constitution, provided that cer-
tain safeguards were put in place.  In Virginia, although Governor
Edmund Randolph rejected the exaggerated Antifederalist claim that
the Constitution granted Congress general police powers,99 he never-
theless remained convinced that provisions like the Necessary and
Proper Clause opened the door to dangerous (if erroneous) interpre-
tations of enumerated federal authority.100  According to Randolph,
the so-called “sweepings clause” was “ambiguous, and that ambiguity
may injure the States.  My fear is, that it will by gradual accessions
gather to a dangerous length.”101  Rather than rejecting the Constitu-
tion, however, Randolph suggested that such ambiguities be resolved
either by public declarations or through the addition of amendments
to the Constitution.102
See infra Part III.
See infra note 169 and accompanying text.
See LEVY,  supra note 30, at 42 (discussing the efforts of some Antifederalists to
“sabotage the Bill of Rights”).
Randolph,  supra note 85, at 1338, 1348 (“Is it not then fairly deducible, that
[the federal government] has no power but what is expressly given it?”).
See id.
Id. at 1353.
See id. at 1354; see also Edmund Randolph, Remarks at the Virginia Convention
(June 24, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at
1473, 1483 (supporting the adoption of a provision declaring the sovereignty of the
people, thus securing the principle that “[a]ll rights are therein declared to be com-
pletely vested in the people, unless expressly given away”).

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Randolph’s demand for express clarification echoed similar
demands from a number of state conventions.103  Even if the Federal-
ists could be taken at their word that the proposed Constitution
granted no more than expressly enumerated powers, declarations
making this principle explicit ought to be adopted, if only for “greater
caution.”104  Of all the proposed amendments, the most common was
one calling for an express declaration of the people’s reserved powers
and rights.  According to Samuel Adams, a reservation clause is “a
 of a bill of rights.”105  In the Virginia convention, Patrick
Henry similarly declared, “[A] Bill of Rights may be summed up in a
few words.  What do they tell us?—That our rights are reserved.”106
Not surprisingly, a clause reserving all powers not expressly dele-
gated to the federal government was generally high on the list for
those states proposing amendments.  Leading Massachusetts’ list, for
example, was a provision which “explicitly declared that all Powers not
expressly delegated by the aforesaid Constitution are reserved to the
several States to be by them exercised.”107  So too for New Hamp-
In the end, eight states submitted proposed amendments, all of which
included provisions declaring the retained sovereignty of the people and limiting the
construction of delegated federal power. See THE  COMPLETE  BILL OF  RIGHTS,  supra
note 34, at 674–75.
See The Virginia Convention Debates (June 27, 1788), in 10 DOCUMENTARY HIS-
TORY OF THE  RATIFICATION,  supra note 85, at 1550, 1553–56 (listing Virginia’s pro-
posed amendments to the Constitution); see also Letters of Centinel No. 2supra note 51,
at 147 (“Mr. Wilson tells you, that every right and power not specifically granted to
Congress is considered as withheld.  How does this appear?  Is this principle estab-
lished by the proper authority?  Has the Convention made such a stipulation?  By no
The Massachusetts Convention Debates (Feb. 1, 1788), in 6 THE DOCUMENTARY
al. eds., 2000) [hereinafter 6 DOCUMENTARY HISTORY OF THE RATIFICATION] (emphasis
added) (response of Mr. Adams to Mr. Bowdoin of Dorchester); see also 2 ELLIOT’S
DEBATES,  supra note 9, at 130–31 (reporting the statement of Samuel Adams before
the Massachusetts convention on February 1, 1788).
Patrick Henry, Remarks at the Virginia Convention (June 16, 1788), in 10 DOC-
UMENTARY HISTORY OF THE RATIFICATION,  supra  note 85, at 1299, 1331.
See Massachusetts’ Form of Ratification (Feb. 6, 1788), in 6 DOCUMENTARY HIS-
TORY OF THE  RATIFICATION,  supra note 105, at 1469, 1469.  Massachusetts’ proposed
amendments were widely published in newspapers throughout the states. See, e.g.,
Legislative Proceedings, CUMBERLAND  GAZETTE (Portland, Me.), Feb. 7, 1788, at 1;
Legislative Proceedings, MASS. GAZETTE (Boston, Mass.), Feb. 5, 1788, at 1; see also The
Massachusetts Convention Debates, supra  note 105, at 1395 (“Your Excellency’s first
proposition is, ‘that it be explicitly declared that all powers not expressly delegated to
Congress, are reserved to the several states to be by them exercised.’  This appears in
my mind to be a summary of a bill of rights . . . .”).

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shire.108  Maryland likewise proposed an amendment declaring
“[t]hat Congress shall exercise no power but what is expressly dele-
gated by this constitution.”109  The Convention then supplied its
understanding that such an amendment would accomplish a strict
construction of federal power:
By this amendment, the general powers given to Congress by
the first and last paragraphs of the 8th sect. of art. I, and the second
paragraph of the 6th article, would be in a great measure
restrained: those dangerous expressions by which the bills of rights,
and constitutions of the several states may be repealed by the laws of
Congress, in some degree moderated, and the exercise of construc-
 powers wholly prevented.110
Finally, Pennsylvania’s proposed amendment clearly linked strict con-
struction of federal power to the retained rights of sovereignty: “That
the sovereignty, freedom, and independency of the several states shall
be retained, and every power, jurisdiction, and right which is not by
this constitution expressly delegated to the United States in Congress
Again, these amendments were not proposals to alter the Consti-
tution’s grants of federal authority.  Instead, they reflected a principle
which, according to the Federalists, already inhered in the idea of del-
egated power.  This explains why some states like New York and
Rhode Island believed a “declaration of understanding” was suffi-
cient.112  Similarly, the South Carolina convention declared its under-
standing of delegated federal power even in the absence of
amendments: “This Convention doth also declare, that no section or
paragraph of the said Constitution warrants a construction that the
states do not retain every power not expressly relinquished by them,
and vested in the general government of the Union.”113
Finally, these proposed amendments and declarations did not
maintain that Congress had no other powers besides those specifically
enumerated in the Constitution.  By “expressly delegated” powers, the
state conventions were taking Federalists on their word; Congress
could exercise only those powers clearly or necessarily incident to an
expressly enumerated power.
See 1 ELLIOT’S DEBATES,  supra note 9, at 325–26.
See 2 id. at 550.  Maryland’s proposed amendments also were widely published.
See, e.g.,  From the Maryland Gazette To the People of Maryland, PA. PACKET (Phila., Pa.),
May 8, 1788, at 2.
From the Maryland Gazette.   To the People of Maryland,  supra note 109.
Reasons of Dissent,  supra note 89, at 624.
See 1 ELLIOT’S DEBATES,  supra note 9, at 327–31, 334–37.
See id. at 325.

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The Virginia Ratifying Convention
As had other state conventions, the Virginia convention proposed
an amendment reserving all nondelegated power to the states.  Vir-
ginia’s proposal, however, left out the word “expressly.”114  When
pressed to add the term, Edmund Randolph insisted that this particu-
lar phrase had been interpreted in an unduly restrictive manner
under the Articles of Confederation.115  In the end, efforts to add the
term failed.  Virginia’s rejection of “expressly delegated power” seems
significant because Madison helped to draft Virginia’s proposed
amendments and he relied on Virginia’s proposal when he produced
his own draft of the Tenth Amendment—a draft which also omitted
the term “expressly.”116
Although the Virginia convention seems to have intentionally
omitted the word “expressly,” before the convention adjourned both
Randolph and Madison insisted that Congress nevertheless was lim-
ited to “expressly delegated power.”  In response to Antifederalist
arguments that adding a Bill of Rights would imply otherwise unlim-
ited federal power,117 Edmund Randolph quoted Virginia’s proposed
declaration that “all power comes from the people, and whatever is
The Virginia Convention proposed the addition of two interlocking
That each State in the Union shall respectively retain every power, juris-
diction and right, which is not by this Constitution delegated to the Con-
gress of the United States, or to the departments of the Federal
. . . .
That those clauses which declare that Congress shall not exercise cer-
tain powers, be not interpreted in any manner whatsoever, to extend the
powers of Congress, but that they may be construed either as making excep-
tions to the specified powers where this shall be the case, or otherwise, as
inserted merely for greater caution.
The Virginia Convention Debates, supra note 104, at 1553–56.  A separate draft of
Virginia’s proposed amendments does include the term “expressly.” See Draft Struc-
tural Amendments to the Constitution (June 27, 1788), in 10 DOCUMENTARY HISTORY
OF THE  RATIFICATION,  supra note 85, at 1547, 1548.  The “Wythe Committee” draft,
reproduced above, does not and this seems more in keeping with the remarks made
both during the Virginia debates and later by James Madison. See supra notes 86–87
and accompanying text; infra notes 120–22, 162–76 and accompanying text.
See Randolph, supra note 102, at 1485 (“When we see the defects of [the old
Article II], are we to repeat it?  Are those Gentlemen zealous friends to the Union,
who profess to be so here, and yet insist on a repetition of measures which have been
found destructive to it?”).
See James Madison, Speech in Congress Proposing Constitutional Amendments
(June 8, 1789), in JAMES MADISON: WRITINGS 437, 444 (Jack N. Rakove ed., 1999).
See Randolph, supra note 102, at 1485.

Seq: 31
t h e  o r i g i n a l   m e a n i n g   o f   a n   o m i s s i o n
not granted by them, remains with them.”118  He then asked, “Could
you devise any express form of words, by which the rights contained in
the Bill of Rights of Virginia could be better secured, or more fully
comprehended? . . .  All rights are therein declared to be completely
vested in the people, unless expressly given away.”119
To Randolph, a declaration of retained popular sovereignty by
definition  limited the powers of government to those expressly enu-
merated.  Soon after Randolph spoke, James Madison rose and
declared that “[t]he observations by [Edmund Randolph], on that
subject, correspond precisely with my opinion. . . .  [E]very thing not
granted is reserved.”120  If Madison’s statement seems ambiguous in
regard to expressly delegated power, soon afterward (before the Bill
of Rights was officially ratified), he publicly declared that the state
conventions had been promised a government of only “expressly dele-
gated power.”121  In yet another public speech delivered only three
years later, Madison again declared that not only had the principle of
expressly delegated power been promised to the states, the addition of
the Ninth and Tenth Amendments enshrined this very principle.122
Summary of the State Conventions
Almost every state convention submitted along with its notice of
ratification a list of declarations or proposed amendments (or both).
Among 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.  Although the Virginia proposals
lacked the term “expressly,” Madison and other Federalists insisted
that the principle of “expressly delegated power” remained an inher-
ent part of the proposed Constitution.
Id. at 1483.
Id.  Note that Randolph equates “giving away a right” with “delegating a
power.”  The common understanding at the time of the Founding was that rights
began where powers left off, and vice versa.  Abandoning a right by definition meant
assigning a power. See generally Lash, Original Meaning,  supra  note 29, at 374 n.203
(arguing that “the Founders broadly shared the view that rights and powers were
directly dependent”).  As Madison put it during his speech introducing the Bill of
Rights, the concern was that unenumerated rights might be assumed to have been
“assigned” into the hands of the government. See Madison, supra note 116, at 448–49.
James Madison, Remarks at the Virginia Convention (June 24, 1788), in 10
DOCUMENTARY HISTORY OF THE RATIFICATION,  supra note 85, at 1473, 1501–02.
See infra note 169 and accompanying text.
See infra notes 162–69 and accompanying text (discussing Madison’s 1791
speech against the Bank of the United States).

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[vol. 83:5
Historians have tended to dismiss such proposals or declarations
as the wishful thinking of the “losers” in the struggle over the Consti-
tution.123  Having canvassed the assurances of the Federalists in the
debates, we can see this is not correct.  When those anxious to pre-
serve broad autonomy over local self-government insisted that the
Constitution granted only expressly enumerated powers, they were
repeating the assurances of the advocates of the proposed Constitu-
tion.  This is not wishful thinking: it is reliance.124
Drafting the Tenth Amendment
Having explored the variable meaning of “expressly delegated
powers,” we are now in a position to revisit the House debates over the
proper language of what would become the Tenth Amendment.  Con-
sider once again the exchange between Madison and Tucker:
Mr. TUCKER proposed to amend the proposition, by prefixing to it “all
powers being derived from the people.”  He thought this a better place to
make this assertion than the introductory clause of the Constitu-
tion, where a similar sentiment was proposed by the committee. He
extended his motion also, to add the word “expressly,” 
so as to read “the
powers not expressly delegated by this Constitution.”
Mr.  MADISON objected to this amendment, because it was
impossible to confine a Government to the exercise of express pow-
ers; there must necessarily be admitted powers by implication,
unless the Constitution descended to recount every minutiae.  He
remembered the word “expressly” had been moved in the conven-
tion of Virginia, by the opponents to the ratification, and, after full
and fair discussion, was given up by them, and the system allowed to
retain its present form.
. . . .
Mr. TUCKER did not view the word “expressly” in the same light
with the gentleman who opposed him; he thought every power to be
See, e.g., CORNELL,  supra note 21, at 244–45.
Some Antifederalists, of course, went further and insisted that the Constitution
included no such limits—but these arguments were meant to derail ratification and
force a second convention. See Address by Denatus, VA. INDEP. CHRON., June 11, 1788,
reprinted in 5 THE COMPLETE ANTI-FEDERALIST,  supra note 32, at 260, 263.  The requi-
site votes for ratification were attained due to the successful argument of the Federal-
ists that no such unlimited power had been granted.  In order that this promise not
be forgotten, the conventions submitted their declared understanding that the Feder-
alists were telling the truth, or insisted on amendments declaring the same.  Even if
the Federalists had in fact dissembled in order to gain ratification, the reasonable
understanding of the ratifiers, as Madison later explained, controlled the original
understanding of the document. See supra note 26 and accompanying text.

Seq: 33
t h e  o r i g i n a l   m e a n i n g   o f   a n   o m i s s i o n
expressly given that could be clearly comprehended within any accurate defi-
nition of the general power.

Mr. TUCKER’S motion being negatived,
Mr.  CARROLL proposed to add to the end of the proposition,
“or to the people;” this was agreed to.125
Tenth Amendment scholars who analyze the above colloquy inva-
riably focus on Tucker’s failed attempt to add the term “expressly.”
Notice, however, that Tucker’s primary purpose was to add a state-
ment of popular sovereignty to the Tenth Amendment.126  The addi-
tion of the term “expressly” was Tucker’s secondary recommendation.
Tucker’s primary goal of adding a statement of retained sovereign
power has gone unnoticed in Tenth Amendment scholarship.  His
success in doing so, however, is critical to understanding the ultimate
nature of the clause and I discuss it in full below.
First, however, notice how the colloquy between Tucker and
Madison illustrates how the same term could be understood in differ-
ent ways.  Madison opposed the addition of the term “expressly” due
to his belief that the addition might be construed to deny the govern-
ment even those means “clearly comprehended” by the express
grant.127  As Madison put it in Federalist No. 44, adding such a term
might lead to accusations that Congress had “violat[ed] the Constitu-
1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834) (emphases added).  There is
a discrepancy here among different reporters.  The Annals of Congress reports Daniel
Carroll of Maryland making the motion to add “or to the people.” See id.  The Gazette
of the United States
, on the other hand, reports that Elbridge Gerry made the motion
and that Carroll opposed it on the grounds that it “tended to create a distinction
between the people and their legislatures.”  Congressional Proceedings, GAZETTE U.S.
(New York, N.Y.), Aug. 22, 1789, at 149, reprinted in  CREATING THE  BILL OF  RIGHTS,
supra note 88, at 192, 193.
Calvin Johnson assumes that the addition of the popular sovereignty language
to the Tenth Amendment must have come from Federalists—Johnson in fact goes so
far as to claim that the language amounted to a “slap in the face” to the Antifederalists
since they believed in states’ rights and not the rights of the people. See JOHNSON,
RIGHTEOUS  ANGER,  supra note 6, at 175.  The record, of course, expressly shows the
opposite is true: the language was first suggested by the same member who sought to
add the term “expressly” to the Tenth Amendment.
This reading seems to be supported by the report of the debate in the Gazette of
the United States in which Roger Sherman of Connecticut supports Madison’s objection
on the ground that “all corporations are supposed to possess all the powers incidental
to their corporate capacity: It is not in human wisdom to provide for every possible
contingency.”  Congressional Proceedings, supra note 125, at 193.  Sherman’s final
point means that he believed the addition of the term would require the Constitution
to expressly “provide for every possible contingency.”  Once again, Tucker did not
share the same reading of “expressly” for he believed it allowed the government suffi-
cient flexibility to use those implied means necessarily incident to the express delega-
tion of power. See id.

Seq: 34
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[vol. 83:5
tion, by exercising powers indispensably necessary and proper, but, at the
same time, not expressly granted.”128  Madison viewed the term as ines-
capably linked to the language of Article II and its attendant
problems.  The Virginia convention had rejected the term “expressly”
precisely because men like Randolph and Madison believed it would
incorporate a term that had hamstrung the earlier Congress.129
Tucker, on the other hand, “did not view the word ‘expressly’ in
the same light” as Madison.  According to Tucker, 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.”  Adding the term would therefore not preclude the
exercise of implied powers—it would, however, control their scope.
Tucker did not disagree with Madison that Congress was to have a
certain degree of implied powers—indeed his comments show he
clearly believed “expressly” delegated powers included those implied
means necessarily incident to the grant.  For his part, Madison did not
oppose a narrow construction of implied congressional means.  His
worry was that the term might be read to reject all implied means—an
unreasonable constraint on the exercise of congressional power.  Put
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.
In fact, before Congress was through drafting the Ninth and
Tenth Amendments, the text of both amendments would be altered
in a manner that emphasized the need to strictly construe the
expressly delegated powers of the sovereign people.
Popular Sovereignty and the Tenth Amendment
At the time that Tucker spoke, the House was considering adding
a statement of popular sovereignty to the Preamble to the Constitu-
tion.130  Tucker objected to this placement on the ground that the
Preamble was not actually part of the Constitution and therefore not
binding upon the government.131  Instead, Tucker wished to make the
declaration a part of the official (and binding) Bill of Rights.132
Tucker’s request echoed similar requests by a number of state conven-
tions that had asked for the addition of an express statement of popu-
THE FEDERALIST NO. 44 (James Madison), supra note 34, at 284.
See, e.g., Randolph, supra note 85, at 1348.
See Madison,  supra note 116, at 441.
See Congressional Proceedings, DAILY  ADVERTISER (New York, N.Y.), Aug. 15,
1789, at 2, reprinted in CREATING THE BILL OF RIGHTS,  supra note 88, at 128, 128.
See id.

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t h e  o r i g i n a l   m e a n i n g   o f   a n   o m i s s i o n
lar sovereignty.  Virginia,133 North Carolina,134 and Rhode Island135
had each proposed adding a declaration to the effect that “all power is
naturally invested in, and consequently derived from, the people; the
magistrates therefore are their trustees and agents, and at all times ame-
nable to them.”  Tucker’s idea of combining the language of popular
sovereignty with a statement of reserved powers tracked the approach
of the New York convention which had proposed:
That the powers of government may be reassumed by the peo-
ple whensoever it shall become necessary to their happiness; that
every power, jurisdiction, and right, which is not by the said Consti-
tution clearly delegated to the Congress of the United States . . .
remains to the people of the several states . . . .136
A declaration of the people’s sovereign power did more than
merely remind the government of its source of authority.  As the peo-
ple’s agent, the government could claim no powers but those
“clearly”137 or “expressly”138 delegated to it.  As James Iredell put it,
“[The Constitution] is a declaration of particular powers by the peo-
ple to their representatives, for particular purposes.  It may be consid-
ered as a great power of attorney, under which no power can be
exercised but what is expressly given.”139  This echoes Edmund Ran-
dolph’s assertion that adding a statement declaring the reserved pow-
ers of the sovereign people would, by definition, limit the government
to expressly delegated powers, for “[a]ll rights are therein declared to
be completely vested in the people, unless expressly given away.”140  To
Randolph, the link between a declaration of popular sovereignty and
a government of expressly delegated powers was of critical
If I did believe, with the Honorable Gentleman, that all power not
expressly retained was given up by the people, I would detest this
Government.  But I never thought so, nor do I now.  If in the ratifi-
cation, we put words to this purpose—that all authority not given, is
retained by the people, and may be resumed when perverted to
their oppression; and that no right can be cancelled, abridged, or
restrained, by the Congress, or any officer of the United States; I
See 3 ELLIOT’S DEBATES,  supra note 9, at 657.
See 4  id. at 243.
See 1  id. at 334.
Id. at 327.
See id. at 327, 334.
For proposals by Massachusetts, New Hampshire, Maryland, and Pennsylvania,
see  supra notes 107–11 and accompanying text.
4 ELLIOT’S DEBATES,  supra note 9, at 148.
Randolph,  supra note 102, at 1483 (emphasis added).

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[vol. 83:5
say, if we do this, I conceive that, as this stile of ratification would
manifest the principles on which Virginia adopted it, we should be
at liberty to consider as a violation of the Constitution, every exer-
cise of a power not expressly delegated therein.141
Understanding the link between the concept of retained sovereign
power and the limited construction of delegated  power explains why
Thomas Tucker’s primary goal was to add a declaration that all
nondelegated powers were reserved to the states or to the people.   By
definition, delegated sovereign power was to be narrowly construed.
Tucker’s secondary proposal, adding the term “expressly,” simply
underlined his primary purpose.  Although the particular term
“expressly” was rejected on the grounds that it too closely followed the
crippling language of the Articles of Confederation, the House ulti-
mately voted to add the words “or to the people.”142  By doing so, the
principle of popular sovereignty and its attendant implicit restrictions
on federal power became an enforceable part of the Constitution.143
The relationship between the popular sovereignty addition to the
Tenth Amendment and the issue of expressly delegated power has
been completely missed by contemporary Tenth Amendment scholar-
ship.  Those scholars who note the addition of the popular sovereignty
language to the Tenth Amendment generally view it as a vague refer-
ence to individual rights, thus ignoring the fact that it was introduced
at the same time and by the same man who sought to limit the new
government to expressly delegated powers.144
Indeed, the final words of the Tenth Amendment may seem
vaguely out of place in a clause seemingly devoted to states’ rights.
Edmund Randolph, Remarks at Virginia Convention (June 21, 1788), in  10
DOCUMENTARY  HISTORY OF THE  RATIFICATION,  supra note 85, at 1440, 1455–56 (foot-
note omitted).
1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
The same principle would be expressed in the Tenth Amendment’s sibling,
the Ninth Amendment.
Those few scholars who have focused on the addition of the “or to the people”
provision have in fact moved in the precisely opposite direction of that envisioned by
Tucker, and attempted to read the clause in tandem with the Ninth Amendment as
guarding individual natural rights. See, e.g., David N. Mayer, The Natural Rights Basis of
the Ninth Amendment: A Reply to Professor McAffee
, 16 S. ILL. U. L.J. 313, 317 n.13 (1992);
Norman Redlich, Are There “Certain Rights . . . Retained by the People”?, 37 N.Y.U. L. REV.
787, 806–07 (1962).  For a critique of this view see Lash, Original Meaning,  supra note
29, at 360 n.422 (suggesting that the Ninth Amendment is best read as an indepen-
dent check on the expansion of federal power through judicial “constructive enlarge-
ment”); Thomas B. McAffee, The Federal System as a Bill of Rights: Original
Understandings, Modern Misreadings
, 43 VILL. L. REV. 17, 19–27 (1998) (taking the view
that “the purpose of the Ninth Amendment is to preserve the federal structure against
a unique threat posed by enumeration of significant limits on federal power”).

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We read terms like “the people” through the lens of nationalism—a
nationalism hard-won through the struggle of a bloody civil war.
Today, “the people” is generally understood to refer to the unified
people of the United States of America.  When the Tenth Amend-
ment was drafted and adopted, however, the only conventions of “the
people” that had ever been held were those involving the people of
individual states.  It was “the people” of Massachusetts (or Virginia or
New York) who held the sovereign power to ratify or reject the pro-
posed Constitution.  Thus, the reference to “the people” in the Tenth
Amendment was generally understood at the time (and later) as a ref-
erence to the people of the several states.145  All powers not delegated
to the federal government, or denied to the states, were reserved to
the people of each state—who in turn could delegate that power to
their respective state governments if they wished to do so.  This is how
courts and commentators have read the Tenth Amendment for over
two hundred years.146
It did not matter, moreover, whether one viewed the proposed
Constitution as creating a single national “people” or as preserving
the individual sovereignty of the “peoples” of the several states (or
both, as Madison believed).147  A single national people was fully capa-
ble of dividing power between a national and local government.148
Where the local governments were assumed to have broad unenumer-
See Kurt T. Lash, The Inescapable Federalism of the Ninth Amendment, 93 IOWA L.
REV. 801, 820 n.63 (2008); see also, e.g., 1 ELLIOT’S DEBATES,  supra note 9, at 327 (con-
taining New York’s proposed declarations and notice of ratification stating that “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”
(emphasis added)).  Antifederalists in Virginia attempted to make hay out of the fact
that the addition of “or to the people” might imply the creation of a unified national
people, thus obliterating the independent existence of the states. See Entry of Decem-
(Richmond, Thomas W. White 1828).  The exaggerated concern was part of an effort
to discredit the proposed Bill of Rights in order to fuel the drive for a second national
convention wherein Antifederalists could restructure the Philadelphia document. See
Lash,  supra, 840–41.
See Printz v. United States, 521 U.S. 898, 919 (1997); New York v. United States,
505 U.S. 144, 155 (1992); Nat’l League of Cities v. Usery, 426 U.S. 833, 842 (1976);
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935); Hammer v.
Dagenhart, 247 U.S. 251, 295 (1918); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
406 (1819); 2 STORY,  supra note 4, § 1907, at 652.
See infra notes 261–67 and accompanying text.
See THE FEDERALIST NO. 39 (James Madison), supra note 34, at 246.

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[vol. 83:5
ated police powers,149 the federal government was understood as hav-
ing only specific delegated powers.  All other powers were reserved to
the people of the several states.150  Thus, no matter how one viewed
the principle of popular sovereignty—as the will of a single people or
as the will of the many people(s) of the United States—power dele-
gated to the national government was to be strictly construed, as were
all delegations of power from the sovereign to the sovereign’s agents.
As Madison put it, “When the people have formed a Constitution, they
retain those rights which they have not expressly delegated.”151
Finally, notice that both the Ninth and Tenth Amendments end with a
reference to “the people.”152  As I explain in detail elsewhere, these
two Amendments were read in tandem as calling for a strict construc-
tion of federal power.153  This is not surprising once we understand
the nature of power delegated by the people.  Standing behind all
such delegations are the sovereign people who were assumed to have
retained all power and rights not expressly delegated away.
The first decade of the Constitution witnessed the emergence of
two competing views of federal power.  The first, represented by Foun-
ders like James Madison and Thomas Jefferson, stressed the commit-
ment made to the state ratifying conventions that federal power would
be strictly construed.  The second, most associated with Alexander
Hamilton, James Wilson, and the Federalist Party under President
John Adams, pressed for a broad reading of Congress’ enumerated
powers.  These two approaches emerged early on in the public debate
over the establishment of the Bank of the United States.  The clash of
competing visions of federal power would reach its climax in the con-
See 2 ELLIOT’S  DEBATES,  supra note 9, at 362–63 (“In the first formation of
government, by the association of individuals, every power of the community is dele-
gated, because the government is to extend to every possible object; nothing is
reserved but the unalienable rights of mankind: but, when a number of these societies
unite for certain purposes, the rule is different, and from the plainest reason—they
have already delegated their sovereignty and their powers to their several govern-
ments; and these cannot be recalled . . . .”).
At least until such time that a combination of both the national and state peo-
ple amend the Constitution. See U.S. CONST. art. V; THE  FEDERALIST  NO. 39 (James
Madison),  supra note 34, at 246 (discussing how the procedures for amendment
involve a combination of national and state majorities).
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
U.S. CONST. amend. X; id. amend IX.
See supra note 143 and accompanying text; see also infra notes 162–86 and
accompanying text (discussing the joint citation of the Ninth and Tenth Amendments
as establishing the principle of expressly delegated power).

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troversy surrounding the enactment of the Alien and Sedition Acts.
The first decade of the Constitution would close with a decisive rejec-
tion of Hamilton’s nationalism and a reaffirmation of the promised
principle of expressly delegated power.
The Bank Controversy
The first major debate over federal power occurred in regard to
the proposed chartering of a national bank.154  James Madison and
Edmund Randolph believed the creation of the Bank was beyond the
legitimate powers of Congress.  Although both men conceded that
Congress had both express and implied powers, the means chosen by
Congress to advance its enumerated ends had to be sufficiently
related to its express authority and not merely “expedient” towards
advancing those ends.155  Thomas Jefferson was even more insistent
that the Bank exceeded federal power, claiming that under the Tenth
Amendment, Congress could authorize only those means absolutely
necessary to advancing an expressly enumerated power.156  The opin-
ion that ultimately convinced President Washington to sign the bank
bill,157 however, was that of Alexander Hamilton.  Despite his insis-
tence during the ratification debates that Congress had only limited
enumerated power, Hamilton now rejected the narrow construction
of federal power advocated by Madison, Randolph, and Jefferson,
and, in language John Marshall would pick up on years later, argued
that Congress possessed any means which were “needful, requisite,
incidental, useful, or conducive” to advancing an enumerated end.158
According to Hamilton:
For background on the debate over the First Bank of the United States, see
ELKINS & MCKITRICK,  supra note, 35, at 223–44; KILLENBECK,  supra note 1, at 9–30.
See Letter from Edmund Randolph, U.S. Attorney Gen., to George Washing-
ton, President of the U.S. (Feb. 12, 1791), in H. JEFFERSON  POWELL, THE  CONSTITU-
TION AND THE ATTORNEYS GENERAL 3, 8 (1999) (“Hence the rule contended for by the
enemies of the bill is defective every way.  It would be still more so with respect to
those (if any such there be) who construe the words, ‘necessary and proper,’ so as to
embrace every expedient power.”); see also James Madison, Speech Opposing the Cre-
ation of a National Bank (Feb. 2, 1791), in JAMES MADISON: WRITINGS, supra note 116,
at 480, 486 (“If implications, thus remote and thus multiplied, can be linked together,
a chain may be formed that will reach every object of legislation . . . .”).
See Thomas Jefferson, Opinion on the Constitutionality of a National Bank
(Feb. 15, 1791), in THOMAS JEFFERSON: WRITINGS 416, 416–21 (Merrill D. Peterson ed.,
Act of Feb. 25, 1791, ch. 10, 1 Stat. 191.
Alexander Hamilton, Final Version of an Opinion on the Constitutionality of
an Act to Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON
97, 102 (Harold C. Syrett ed., 1965).

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[E]very power vested in a Government is in its nature sovereign, and
includes by force of the term, a right to employ all the means requi-
site, and fairly applicable to the attainment of the ends of such power;
and  which are not precluded by restrictions & exceptions specified in the
; or not immoral, or not contrary to the essential ends of
political society.159
Foreshadowing the position Marshall would hint at in McCulloch
and make express in Gibbons, Hamilton insisted that the only constitu-
tional limits to federal power were those “specified” in the Constitu-
tion.160  Sensing an attempt to stretch congressional authority beyond
its legitimate limits, a number of Representatives objected that the
bank bill exceeded the properly construed powers of Congress.
Future Virginia Governor William Branch Giles, for example,
took notice of some of the observations which had fallen from a
gentleman from Connecticut respecting incidental powers, and
denied that Congress possessed those powers.  The general govern-
ment, he said, was not a consolidating government, but a federal
government, possessed of such powers as the states or the people
had expressly delegated . . . .161
In his own speech opposing the Bank, James Madison pointed
out that the state conventions had ratified the Constitution on the
assumption that federal power would not receive such a “latitudinary”
construction.  In a passage of his speech that until now has gone
unnoticed, Madison explicitly embraced the principle of expressly del-
egated power and tied it directly to the Ninth and Tenth
In confirmation of his sentiments, [Madison] adduced certain
passages from speeches made in several of the state conventions by
those in favour of adopting the constitution.  These passages were
fully in favour of this idea, that the general government could not
exceed the expressly delegated powers.  In confirmation also of this
Id. at 98 (final emphasis added).
This seems to contradict the Ninth Amendment which declares that the restric-
tions on federal power enumerated in the Constitution are not the only restrictions on
federal power. See Lash, Textual-Historical Theory,  supra note 29, at 921.
Congressional Proceedings, GEN. ADVERTISER (Phila., Pa.), Feb. 5, 1791, at 3
[hereinafter Congressional Proceedings, GEN. ADVERTISER].  Three years later, Giles
left no doubt that the Tenth Amendment embraced this specific principle.  In a dis-
cussion regarding the power of the government to provide relief for destitute aliens:
“Mr. Giles enlarged on the unconstitutionality of the power proposed to be exercised
by the legislature.  The scope of his argument turned on the force of an amendment
to the constitution, which precludes Congress from the exercise of powers not
expressly delegated.”  Congressional Proceedings, GREENLEAF’S N.Y.J., Jan. 18, 1794, at

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t h e  o r i g i n a l   m e a n i n g   o f   a n   o m i s s i o n
sentiment, he adduced the amendments proposed by Congress to
the constitution.162
[A]ll these renunciations of power proceeded on a rule of construc-
tion, excluding the latitude now contended for.  These explanations
were the more to be respected, as they had not only been proposed
by Congress, but ratified by nearly three-fourths of the states.  He
read several of the articles proposed, remarking particularly on the
[Ninth and Tenth Amendments,] the former, as guarding against a
latitude of interpretation—the latter, as excluding every source of
power not within the constitution itself.163
The material quoted above combines two separate incomplete
accounts of Madison’s speech.  The first paragraph comes from an
account of Madison’s speech published by the Federal Gazette.164  The
second paragraph is from an account of the speech published a few
days later in the Gazette of the United States.165  Because the later version
contained a more extensive version of Madison’s remarks, this is the
account presented in collections of Madison’s writings.166  The initial
version published in the Federal Gazette, however, contains aspects of
Madison’s speech which were only paraphrased in the account
printed in the Gazette of the United States.167
The reporter for the Gazette of the United States breaks off from
Madison’s actual remarks just when Madison began speaking about
Congressional Proceedings, FED. GAZETTE,  supra  note 11; see also 4 ELLIOT’S
DEBATES,  supra note 9, at 414 (reporting the statements of James Madison regarding
the establishment of a national bank on February 2, 1791).
Congressional Proceedings,  GAZETTE U.S. (New York, N.Y.), Feb. 23, 1791, at
757 [hereinafter Congressional Proceedings,  GAZETTE U.S.].  In the bracketed text,
Madison referred to the “11th and 12th” Amendments.  His reference reflects the
early convention of referring to provisions in the Bill of Rights according to their
placement on an original list of twelve proposed amendments.  What we know as the
Ninth and Tenth Amendments were eleventh and twelfth on that original list. See
Congressional Proceedings, FED. GAZETTE,  supra note 11.
Congressional Proceedings, GAZETTE U.S.,  supra note 163.
See James Madison, Speech Opposing the Bank Bill (Feb. 2, 1791), in 13 THE
PAPERS OF JAMES MADISON 373 (Charles F. Hobson et al. eds., 1981); Madison, supra
note 155, at 480.
This earlier account can also be found in Elliot’s DebatesSee 4 ELLIOT’S
DEBATES,  supra note 9, at 414.  The use of Elliot’s Debates, however, has fallen out of
favor among legal historians due to Elliot’s somewhat notorious states’ rights advo-
cacy, as noted in H. Jefferson Powell, The Principles of ’98: An Essay in Historical
, 80 VA. L. REV. 689, 689 (1994), and the gradual emergence of more com-
plete collections of founding materials.  For an example of the latter, see THE DOCU-
al. eds., 1976–2008).  The Documentary History collection, however, does not at this
time include materials on the bank debate.

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the promises made to the state conventions.  At that point, the
reporter inserts a parenthetical paraphrase of Madison’s remarks.168
The writer for the Federal Gazette, on the other hand, reports that
Madison declared the states had been promised that “the general gov-
ernment could not exceed the expressly delegated powers.”169  The
passage is obviously significant, for it presents Madison as explicitly
claiming that the ratifiers in the states had relied upon the promise
that the federal government would have only expressly delegated pow-
ers.  The Gazette of the United States, on the other hand, includes critical
information left out of the Federal Gazette, in particular Madison’s insis-
tence that the principle of expressly delegated power was made an
official part of the Constitution through the adoption of the Ninth
and Tenth Amendments.170  To my knowledge, these two accounts
have never before been viewed in conjunction—indeed, the critical
passage in the Federal Gazette regarding expressly delegated power has
never been noticed at all.
In support of his claim that the states expected no more than
expressly delegated power, Madison quoted “certain passages” from
the Pennsylvania, Virginia, and North Carolina conventions.171  We
know that all of these conventions heard Federalist assurances that
Congress would have only expressly enumerated powers.  In North
Carolina, Archibald Maclaine, Governor Samuel Johnston, and future
Supreme Court Justice James Iredell all assured the convention that
Congress would have none but expressly delegated powers.172  In Vir-
ginia, Edmund Randolph made the same assurances.173  In Penn-
sylvania, future Supreme Court Justice James Wilson apparently made
a similar claim174 and the Pennsylvania convention ratified the Consti-
tution with the expectation that amendments would soon be added,
Congressional Proceedings,  GAZETTE U.S.,  supra  note 163; see also Madison,
supra note 155, at 489 (“Here he read sundry passages from the debates of Penn-
sylvania, Virginia, and North-Carolina conventions, shewing the grounds on which the
constitution had been vindicated by its principle advocates, against a dangerous lati-
tude of its powers, charged on it by its opponents.”).
Congressional Proceedings, FED. GAZETTE,  supra note 11.
See Congressional Proceedings, GAZETTE U.S.,  supra note 163.
See  Congressional Proceedings, FED. GAZETTE,  supra  note 11 The earlier
account in the Federal Gazette reveals that the specific arguments Madison referred to
were those limiting Congress to expressly enumerated powers. See id.
See supra notes 59–61 and accompanying text.
See supra notes 85–86 and accompanying text.
See Letters of Centinel No 2,  supra  note 51, at 147 (“Mr. Wilson tells you, that
every right and power not specifically granted to Congress is considered as withheld.
How does this appear?  Is this principle established by the proper authority?  Has the
Convention made such a stipulation?  By no means.”).  For a discussion of Wilson’s

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with top priority being a provision limiting the government to
expressly delegated power.175  After reminding the House about these
assurances, Madison then pointed out that the Ninth and Tenth
Amendments had been proposed in order to put in writing the prom-
ised principle of expressly enumerated powers.176
Even some of Madison’s opponents on the question of a national
bank agreed that the Tenth Amendment represented an underlying
principle of expressly delegated power.  John Vining of Delaware, for
example, accepted the rules of narrow construction urged by Madison
and Giles, but nevertheless insisted that power to incorporate the
Bank fell within Congress’ legitimate authority.  According to Vining,
“The constitutionality of the [Bank] . . . urged from a fair construc-
tion of those powers, expressly delegated, and from a necessary impli-
cation.”177  Likewise, Fisher Ames accepted the principle of expressly
enumerated powers while still supporting the Bank:
Gentlemen had noticed the amendment proposed by Congress
to the Constitution as conveying the sense of the Legislature on the
nature of the powers vested by that instrument; the amendment
stated, that it should be declared, that the powers not expressly del-
egated to the General Government, and such as could be exercised
by the States, should be considered as belonging to the States.  But
the power of establishing a National Bank, he said, could not be
exercised by the States, and therefore rested no where but in the
Federal Legislature.178
Notice how Ames described the Tenth Amendment as “conveying the
sense of the legislature on the nature of power” delegated to the fed-
eral government.  Specifically, “powers not expressly delegated to the
argument and the concept of “expressly delegated” powers, see WOOD, supra note 52,
at 539–40.
Madison,  supra note 155, at 488–89 (“[T]he [Pennsylvania, Virginia, and
North Carolina] state conventions all turned on the same fundamental principle
[that the powers not given were retained], and on the principle that the terms neces-
sary and proper gave no additional powers to those enumerated.”).
See id. at 489.  For readers unfamiliar with developments in Ninth Amendment
historical scholarship, it might seem odd that Madison paired the Tenth with the
Ninth Amendment.  Until recently, scholars have tended to view the Amendments as
having very different purposes, with the Ninth guarding rights and the Tenth guard-
ing powers.  As I have discussed elsewhere, however, it appears that the two Amend-
ments were viewed as working in conjunction to preserve the people’s retained right
to local self-government. See supra note 29.
Congressional Proceedings, GEN. ADVERTISER,  supra note 161.
National Bank, COLUMBIAN CENTINEL (Boston, Mass.), Mar. 9, 1791, at 201; see
also The Observer No. V (pt. 1), FED. GAZETTE (Phila., Pa.), Apr. 1, 1791, at 2 (“[W]hile
[the Constitution] provided for the strength and common defense of the whole, it left
every part in possession of the rights not expressly delegated or resigned . . . .”).

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[vol. 83:5
[federal] Government . . . should be considered as belonging to the
states.”179  Ames thus read the Tenth Amendment as declaring a pre-
existing limitation on the proper construction of federal power, and
he conceded that the principle declared by the Tenth Amendment
was one of expressly delegated federal power.180
Although Madison failed to persuade his fellows in the House (or
the President) that the Bank exceeded Congress’ delegated powers,
his speech was widely distributed and commentators praised his
defense of the principle of expressly delegated power.181  Before the
National Bank,  supra note 178.
Similar statements were made by Theodore Sedgwick who argued:
The amendment proposed by Congress to the constitution had been
mentioned to prove that agreeable to the sense of the federal legislature the
general government had no authority to set on foot a bank: he conceived it
did not go so far; the establishment of an institution that was intended to
have a general operation, could only rest with the representatives of the
If it was dubious whether the power contested could not be clearly
deduced from the constitution, it should not, he said, be exercised: but it
appeared to him clearly delegated by that instrument.
Congressional Proceedings, FED. GAZETTE (Phila., Pa.), Feb. 16, 1791, at 2.  Some
advocates of the Bank, of course, shared Alexander Hamilton’s newly announced view
of federal power. See, e.g., Congressional Proceedings, FED. GAZETTE (Phila., Pa.),
Feb. 15, 1791, at 2 (“The more important powers are specially granted, but the choice
from the known and usual means of carrying the power into effect is left to the deci-
sion of the legislature.”).
See An American, For the American Daily Advertiser, DUNLAP’S  AM. DAILY  ADVER-
TISER (Phila., Pa.), Feb. 16, 1791, at 2 (noting that “state governments and the people
retained all powers not expressly granted by the Constitution” and praising Madison’s
effort against the Bank).
Madison’s argument against the bank had a long life.  The Richmond Enquirer
reprinted the speech in its entirety when the charter was up for renewal in 1810. See
Letter to the Editor, ENQUIRER (Richmond, Va.), Jan. 4, 1810, at 4.  Following the
Supreme Court’s decision upholding the Second Bank of the United States in McCul-
, St. George Tucker planned to add a note to his revised edition of Blackstone’s
Commentaries acknowledging the decision, but directing his readers to Madison’s
speech. See St. George Tucker, Notes for Revised Version of 1 Tucker’s Blackstone’s
Commentaries,  in 1 BLACKSTONE’S COMMENTARIES,  supra note 69, app. at 287 (hand-
written notes on facing pages of Tucker’s personal copy of Blackstone, located at the
Earl Gregg Swem Library at the College of William and Mary).  The following was to
be added as note * to his discussion of the Necessary and Proper Clause:
See also, the late President Madison’s Speech in Congress in February 1791
against the Bill for establishing a Bank, published in the Richmond
Enquirer, vol: 6: no:73. January 4, 1810.  But the question on the right of
Congress to establish a Bank, with branches in the several states is put at rest,
by the Decision of the Supreme Court of the United States, unanimously, in
the case of McCulloch vs the State of Maryland March 1819.  “That the Act to

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close of the Constitution’s first decade, Justice Chase of the United
States Supreme Court would issue two opinions embracing this same
principle of expressly delegated power.  Of the two,182 Chase’s famous
opinion in Calder v. Bull183 is most often cited in support of judicial
protection of unenumerated natural rights.184  The opinion, however,
includes a rarely quoted but strongly worded passage on the retained
sovereignty of the people in the states and the limits of federal power:
It appears to me a self-evident proposition, that the several
State Legislatures retain all the powers of legislation, delegated to
them by the State Constitutions; which are not EXPRESSLY taken away
by the Constitution of the United States.  The establishing courts of
justice, the appointment of Judges, and the making regulations for
the administration of justice, within each State, according to its laws,
on all subjects not entrusted to the Federal Government, appears to me to
be the peculiar and exclusive province, and duty of the State Legisla-
All the powers delegated by the people of the United States to the
Federal Government are defined, and NO CONSTRUCTIVE powers can
incorporate the Bank of the U.S. is a law made in pursuance of the Constitu-
tion, and is a part of the supreme law of the land.” and also, “That the Law
passed by the Legislature of Maryland, imposing a Tax on the Bank of the
U.S. is unconstitutional and void.”
Id.;  see also Hampden, Letter to the Editor, Rights of “the States and of the People” No. 3,
RICHMOND  ENQUIRER,  June 18, 1819, at 2, reprinted in JOHN  MARSHALL’S  DEFENSE OF
MCCULLOCH V. MARYLAND 125, 133 (Gerald Gunther ed., 1969) (repeating Clinton’s
argument that incidental powers must be subordinate to an enumerated end);
Hampden, Letter to the Editor, Rights of “the States and of the People” No. 2, RICHMOND
ENQUIRER, June 15, 1819, at 3, reprinted in JOHN MARSHALL’S DEFENSE OF MCCULLOCH
V. MARYLAND,  supra, at 116, 122–23 (referring to Madison’s “celebrated” speech
against the first bank law).
In addition to the case discussed in the text, Justice Samuel Chase also deliv-
ered an opinion while on circuit in which he declared:
In this country, every man sustains a two-fold political capacity; one in
relation to the state, and another in relation to the United States.  In relation
to the state, he is subject to various municipal regulations, founded upon the
State constitution and policy, which do not affect him in his relation to the
United States: For, the constitution of the Union, is the source of all the juris-
diction of the national government; so that the departments of the govern-
ment can never assume any power, that is not expressly granted by that
instrument, nor exercise a power in any other manner than is there
United States v. Worrall, 28 F. Cas. 774, 779 (C.C.D. Pa. 1798) (No. 16,766) (opinion
of Chase, J.).
3 U.S. (3 Dall.) 386 (1798).
See, e.g., BARNETT,  supra note 28, at 126; CALVIN R. MASSEY, SILENT RIGHTS 49,
158–59 (1995); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV.
1127, 1166–73 (1987).

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[vol. 83:5
be exercised by it, and all the powers that remain in the State Gov-
ernments are indefinite; except only in the Constitution of
By citing the above examples (and there are others), I do not
mean to claim that the principle of expressly enumerated power was
uniformly embraced by all relevant parties during the first decade of
the Constitution.186  Indeed, as I indicated at the opening of this Part
(and as the bank debates obviously reveal) a strong counterinterpreta-
tion of broad federal power emerged during this same period.  The
above examples illustrate, however, that the same principle which was
pressed by the Federalists in the ratifying conventions lived on after
the establishment of the Constitution.  Before this principle could
prevail, however, it would have to overcome a very different under-
standing of national power—a far more nationalist interpretation that
Calder, 3 U.S. (3 Dall.) at 387.
In addition to those examples cited in this and the next subpart, see Ex parte
Tate, 39 Ala. 254, 255 (1864) (George W. Gayle for petitioner) (“[T]he general gov-
ernment is the mere creature and agent of the States, and possesses only such powers
as are expressly delegated to it, or such as are necessary to carry into effect the dele-
(photo. reprint 1970) (1799) (“That the individuals selected from the mass of the
people, to administer the government, possess no powers, general or special, but
those which are either expressly delegated, or are necessary to carry a power expressly
delegated into effect.”); Letter from George Washington to Lord B. (1818), in LET-
[George Watterston] ed., Wash., D.C., Jacob Gideon 1818) (“You will easily discover,
and it must be always understood, that the powers not expressly delegated, are
reserved to the states and to the people.  All constructive or assumed powers are con-
sidered as dangerous to the liberties of the citizen, and fatal to the rights and the
union of the states.”); Congressional Proceedings, NAT’L  INTELLIGENCER (Wash.,
D.C.), Nov. 27, 1807, at 1 (“Whatever powers and authorities are not expressly dele-
gated by the constitution to the United States, or necessarily arising under it, shall be
reserved to the states themselves or to the people.”); Congressional Proceedings, N.Y.
COM. ADVERTISER, Jan. 24, 1805, at 2.  As Senator Hayne put it during the Tariff
Debates of the 1820s:
Gentlemen surely forget that the supreme power is not in the government of
the United States.  They do not remember that the several states are free and
independent sovereignties, and that all power not expressly granted to the
federal government is reserved to the people of those sovereignties.  When I
say expressly delegated, I wish to be understood that no power can be exer-
cised by Congress which is not expressly granted, or which is not clearly inci-
dent to such a grant.
4 ELLIOT’S DEBATES,  supra note 9, at 476 (reporting the remarks of Robert Hayne in
April 1824).  Hayne, of course, was on the historically perceived losing end of the
famous Hayne-Webster debates.  Whatever one makes of his arguments in terms of
the politics of the 1830s, he is clearly using terms and principles that extend back to
the Founding.

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relied on the omission of the word “expressly” in the Tenth
The Alien and Sedition Acts Controversy
Although the issue of a national bank remained a subject of
fierce debate for decades, it pales in comparison to the political con-
troversy triggered by the adoption of the Alien and Sedition Acts.187
Passed in the midst of a political standoff with France in 1798, the Acts
authorized presidential deportation of suspected subversive aliens188
and essentially criminalized public criticism of the national govern-
ment.189  Outraged by what they perceived as an unconstitutional
usurpation of powers reserved to the states, James Madison and
Thomas Jefferson anonymously prepared their famous Virginia and
Kentucky Resolutions which declared that the Acts exceeded any rea-
sonable interpretation of federal power and violated the First Amend-
ment’s express denial of power to regulate the press.190  Because the
subject was intended to be beyond federal control, the Acts violated
the reserved powers declaration in the Tenth Amendment.
As the presidential election of 1800 approached, the Republican
majority in the Virginia Assembly prepared a report on the Virginia
Resolution and distributed it as a campaign document supporting the
election of Republicans to the national Congress (and the presi-
dency).191  Despite the dominance of Republicans in most of the state,
there remained a number of Virginia districts where Federalists stood
a chance of gaining seats in the next election, including one particu-
lar district where future Supreme Court Chief Justice John Marshall
hoped to gain a seat in the national House of Representatives.192  The
controversy over the Federalist Party–enacted Alien and Sedition Acts,
however, placed all Federalist candidates in Virginia on the defensive.
In an effort to defend their party from accusations of unconstitutional
usurpation, the Federalist minority in the Virginia Assembly submitted
See Act of July 14, 1798, ch. 74, 1 Stat. 596, 596–97; Act of July 6, 1798, ch. 66, 1
Stat. 577, 577–78; Act of June 25, 1798, ch. 58, 1 Stat. 570, 570–71; Act of Jan. 29,
1795, ch. 20, 1 Stat. 414, 414–15.
See Act of June 25, 1798, ch. 58, 1 Stat. at 570–71.
See Act of July 14, ch. 74, 1 Stat. at 596–97.
See James Madison, Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’
CONSTITUTION 135, 135–36 (Philip B. Kurland & Ralph Lerner eds., 1987); see also
Thomas Jefferson, Kentucky Resolutions (Nov. 10, 1798), in 5 THE FOUNDERS’ CONSTI-
TUTION,  supra, at 131, 131–34.
See Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense
of the Alien and Sedition Acts, 68 OHIO ST. L.J. 435, 494 (2007).
Id. at 449.

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[vol. 83:5
its Report of the Minority on the Virginia Resolutions (“Minority Report”)—
a defense of the Alien and Sedition Acts.193
The Minority Report, whose authorship at the time was unknown,
presented a strong constitutional defense of the Acts and, in so doing,
articulated an expansive vision of federal power.  In response to
claims that the Acts exceeded the implied necessary and proper pow-
ers of Congress, the author of the Minority Report argued that the
omission of the term “expressly” from the text of the Tenth Amend-
ment implied otherwise broad congressional authority:
The government of the United States is indubitably limited as
to its objects, however it may be as to the means of obtaining those
objects . . . .  It is necessary in pursuing this inquiry to bear in mind
that we are investigating a constitution which must unavoidably be
restricted in various points, to general expressions, making the
great outlines of a subject; and not a law which is capable of
descending to every minute detail. . . .
. . . It would be difficult too, to assign a reason for omitting in
the [Tenth] amendment to our constitution, which is evidently cop-
ied from the second article of the ancient confederation, the very
material word expressly.  That article of the confederation, and the
amendment to our constitution, were designed as a plain and
explicit admission of the principle, that the powers not delegated
are retained.  In the confederation all powers not expressly delegated
are retained; but in the amendment, this very operative word is
wisely omitted.194
This passage bears a number of striking similarities to arguments John
Marshall would use decades later in McCulloch.  Like the author of the
Minority Report, Marshall would stress that “we must never forget,
that it is a constitution we are expounding,”195 and that one should
therefore expect broad pronouncements of general power rather
than the “prolixity of a legal code.”196  Marshall’s argument in McCul-
also uses the exact same argument as the Minority Report in
regard to the implications of the missing word “expressly.”197  It
should come as no surprise, therefore, to learn that the anonymous
See Report of the Minority on the Virginia Resolutions (Jan. 22, 1799), in 5 THE
FOUNDERS’ CONSTITUTION,  supra note 190, at 136.
Address, PHILA. GAZETTE, Feb. 9, 1799, at 1.  In the bracketed text, the author
referred to the “12th” proposed amendment to the Constitution, reflecting an early
convention by which the original amendments were referred to according to the
place on an original list of twelve proposed amendments.  Our Tenth was the twelfth
on that original list. See supra note 163
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
Id. at 406.

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authorship of the Minority Report has traditionally been attributed to
none other than John Marshall himself.198
Although the Virginia and Kentucky Resolutions did not receive
the support from other states wished for by Jefferson and Madison,
Republicans continued to press their case against the Alien and Sedi-
tion Acts.  James Madison drafted what would come to be known as
“Madison’s Celebrated Report of 1800” which provided a detailed
analysis and defense of the Virginia Resolutions’ claim that Congress
had exceeded its powers and violated the Tenth Amendment.199  In
his 1799 campaign pamphlet, future Governor John Page argued that
the Alien and Sedition Acts were “not only unnecessary, impolitic and
unjust, but unconstitutional.”200  According to Page, the Acts violated
the retained rights of the states as protected by the Ninth and Tenth
Amendments.201  Specifically addressing the Virginia Minority
Report’s claims about implied federal power and the Tenth Amend-
ment, Page insisted that the combination of the Ninth and Tenth
(1972); 2 BEVERIDGE, supra note 5, at 402; MORTON FRISCH & RICHARD STEVENS, POLITI-
MADISON 397 (1971); Letter from John Quincy Adams to William Vans Murray (Apr.
9, 1799), in 2 WRITINGS OF JOHN QUINCY ADAMS 402, 403 (Worthington C. Ford ed.,
1913); Letter from Theodore Sedgwick to Alexander Hamilton (Feb. 7, 1799), in 22
THE  PAPERS OF  ALEXANDER  HAMILTON 469, 470 (Harold C. Syrett et al. eds., 1975);
JOHN P. ROCHE, JOHN  MARSHALL 32–34 (John P. Roche & Stanley B. Bernstein eds.,
1967); JAMES MORTON SMITH, FREEDOM’S FETTERS 151 (1956); Jack L. Cross, John Mar-
shall on the French Revolution and on American Politics
, 12 WM. & MARY Q. 631, 637
(1955); Morton J. Frisch, John Marshall’s Philosophy of Constitutional Republicanism, 20
REV. POL. 34, 39 & n.32 (1958); William E. Nelson, The Eighteenth-Century Background of
John Marshall’s Constitutional Jurisprudence
, 76 MICH. L. REV. 893, 933 (1978); Robert C.
Palmer, The Federal Common Law of Crime, 4 LAW & HIST. REV. 267, 277 (1986).  Recent
biographers of John Marshall have challenged this attribution.  For a full discussion—
and rejection—of the attempts to erase Marshall’s name from the Minority Report,
see Lash & Harrison, supra note 191.
See James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in
JAMES MADISON: WRITINGS,  supra note 116, at 608.  For a discussion of the Report and
its significance for later states’ rights theory, see Kurt T. Lash, James Madison’s Cele-
brated Report of 1800: The Transformation of the Tenth Amendment
, 74 GEO. WASH. L. REV.
165, 182–87 (2006).
PAGE,  supra note 13, at 9.  Page was a member of Congress from 1789 to 1797,
and Governor of Virginia from 1802 to 1805.  4 HERRINGSHAW’S NATIONAL LIBRARY OF
AMERICAN BIOGRAPHY 361 (Thomas William Herringshaw ed., 1914).  Thus, not only
was he in Congress when Madison gave his bank speech, he was a representative from
Virginia at the time that state was considering the Bill of Rights.  He would have been
well aware of Madison’s opposition to the Bank—indeed, the men regularly
See PAGE,  supra note 13, at 13–14.

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Amendments (which he referred to as the “11th and 12th”) had
restored the missing term from Article II of the Articles of Confedera-
tion.  Below, I have provided an extended portion of his argument, as
it presents a detailed and sophisticated analysis of the relationship
between retained sovereignty and strict construction of delegated
For how could it be supposed when the 2d article of the confederation
declared that “each state retains its sovereignty, freedom, and inde-
pendence, and every power, jurisdiction, and right, which is not by
this Confederation expressly delegated to the U. States, in Congress
assembled,” and the design of appointing a convention and the
authority given by the different confederated states to that conven-
tion went no farther than “to render the then Federal Constitution
adequate to the exigencies of government and the preservation of
the union,” (neither of which could require farther powers in gov-
ernment than are expressly granted) that although the convention
omitted the insertion of a familiar article; where as unnecessary in
their opinion or, through design; (such as seems now avowed) as the
amendment was made, and as these words preceded it in the 11th
article, “the enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people
I say, considering these things, how could it be possible to sup-
pose, that these two amendments taken together, were not suffi-
cient to justify every citizen in saying, that 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, as
fully and completely; as if the word expressly had been inserted? . . .
And candour, and a respect for the majority the of congress which
recommended the amendments ought to induce us to think, that
they also were of the same opinion [that the 2d art. of the art’s still
operated] and therefore that they would not have recommended
the addition of the 11th and 12th articles to the constitution, had
they not been called upon by some states for such amendments
. . . .”202
Page was a member of the Congress that helped frame and submit the
Bill of Rights, including the Ninth and Tenth Amendments.  He was a
member of the House when Madison gave his speech on the Bank of
the United States and he represents yet another Virginian who
believed that the Ninth and Tenth Amendments established that Con-
gress would have none but expressly delegated powers.203
Id. at 28–29.
Other campaign documents distributed in the months leading up to the
national election stressed the same reading of federal power.  In an essay entitled On
the Election of the President of the United States
, the author declared: “[The Constitution]

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The same “popular sovereigntist” reading of the Ninth and Tenth
Amendments can be found in court proceedings of the time,204
including an opinion by a member of the second North Carolina rati-
fying convention,205 John Overton.  Overton went on to join the Ten-
nessee bench and there presided over a case that contains one of the
earliest state judicial references to the Ninth and Tenth Amend-
ments.206  The background issue involved whether a state property
judgment was binding on a portion of land falling within Indian terri-
tory.207  Overton held that it was, in part on the basis of retained sover-
eignty of the states:
But how far has the Constitution and laws of the United States,
made in pursuance of it, abridged the sovereign rights of each
State?  The answer is easy.  No further than the States have expressly,
and not by equitable construction, delegated authority to the
United States.  The Constitution of the United States was proposed
to each State possessing the rights of sovereignty within their respec-
tive limits.  It proposed that each State should give up a portion of
its sovereignty for the more secure and convenient enjoyment of the
The elections of 1800 represented a triumph of the Republican
vision of federal power.  Federalists lost control of both political
branches of the national government and the Alien and Sedition Acts
were allowed to ignominiously expire (Jefferson pardoned those con-
appears to be founded entirely on the principle, that the federal government is only
to exercise the powers that have been expressly delegated to it.”  A Republican, On the
Election of the President of the United States
, CAROLINA GAZETTE (Charleston, S.C.), Sept.
4, 1800, at 1.
See THE  TRIAL OF  CYRUS B. DEAN 47 (Burlington, Samuel Mills 1808) (“We
learn from the eleventh and twelfth articles of the first amendment to the Constitu-
tion of the United States that the enumeration in the constitution of certain rights,
shall not be construed to deny or disparage others retained by the people; that the
powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively.  If then, Congress have power to
intermeddle with the soil within a state’s jurisdiction—to say who should, or rather
who should not hold or possess it, this power must have been expressly delegated to
the government of the United States.”).
Although the first convention neither accepted nor rejected the Constitution,
the second convention in 1789 voted in favor of ratification. See  Chronology,
1786–1790,  supra note 61, at xl, xlii.
See Glasgow’s Lessee v. Smith, 1 Tenn. (1 Overt.) 144, 149 (1805).
See id. at 144–45.
Id. at 166 (emphasis added) (footnote omitted).

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victed under the Sedition Act).209  For decades, the so-called Revolu-
tion of 1800 was viewed as a referendum on the proper interpretation
of federal power.210  Having strongly criticized the constitutional theo-
ries underlying the Alien and Sedition Acts,211 St. George Tucker capi-
talized on the Republicans’ victory and published the first treatise on
the United States Constitution.  In his View of the Constitution, Tucker
summarized the rule of strict construction insisted upon by so many
opponents of the hated Acts.  According to Tucker:
The sum of [the Ninth and Tenth Amendments] appears to be, that
the powers delegated to the federal government, are, in all cases, to
receive the most strict construction that the instrument will bear,
where the rights of a state or of the people, either collectively, or
individually, may be drawn in question.212
The Nationalism of John Marshall
As the clock ran out on the outgoing Federalist administration,
Adams nominated his Secretary of State, John Marshall, to the take
the seat of the Chief Justice of the Supreme Court.  By doing so, he
insured that the same vision of federal power that animated the Alien
and Sedition Acts would live to fight another day.  A rise in national
sentiment following the War of 1812,213 and an expanding country
together created opportunities and incentives to expand the role of
the federal government, particularly in the areas of finance214 and
internal improvements.215  Doing so, however, required a more
nationalist vision of federal power than that which had been promised
For a general account of the Acts and their aftermath, see DAVID P. CURRIE,
For decades, the triumph of the Republicans was viewed as a vindication of the
original understanding of the Constitution. See, e.g., Padelford, Fay & Co. v. Mayor of
Savannah, 14 Ga. 438, 494–95 (1854) (discussing the battle over the Alien and Sedi-
tion Acts as a battle for a rule of strict construction of the Constitution).  In this way,
the election of 1800 represents an example of the sovereign people acting “people
out-of-doors” in order to defend their understanding of the Constitution. See KRAMER,
supra note 28, at 35, 45.  For a general account of the struggle over the Alien and
Sedition Acts and the influential election of 1800, see Lash, supra note 199, at 180–95.
See Tucker, supra note 69, app. at 356–61.
Id. at 154.
See WHITE,  supra note 1, at 87.
The War of 1812 created pressure on the nation’s finances that “strengthened
the case for a federal banking system.”  JEAN  EDWARD  SMITH, JOHN  MARSHALL 441
See James Madison, Veto Message to Congress (Mar. 3, 1817), in JAMES
MADISON: WRITINGS,  supra note 116, at 718, 718–20.

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to the states and had triumphed in the Revolution of 1800.216  That
vision was supplied by Chief Justice John Marshall in McCulloch.
A trilogy of important cases came before the United States
Supreme Court in the 1819 Term, including Sturges v. Crownin-
,217 Trustees of Dartmouth College v. Woodward,218 and McCulloch.
Of the three, McCulloch was the last to be decided and, according to
Marshall’s first great biographer, Albert Beveridge, had Marshall’s
“fame rested solely on this one effort, it would be secure.”219  That
general sentiment remains true today as McCulloch is broadly consid-
ered the seminal discussion of congressional power under the Consti-
tution.220  Written soon after President Madison’s veto of the bank bill
on the grounds that the strict construction of the Constitution denied
Congress such power, Marshall and the rest of the Court were deter-
mined to use McCulloch as an opportunity to establish a broad (or, in
Marshall’s words, “fair”) reading of federal power.221
Popular Sovereignty and McCulloch
Prior to McCulloch, the most influential discussion of enumerated
federal power was contained in St. George Tucker’s View of the Consti-
.  Tucker’s rule of strict construction was premised on the idea,
borrowed from international law, that delegations of power from a
sovereign ought to be strictly construed in order to retain all power
not expressly delegated away.222  As the people of the states were the
sovereigns who delegated power to the new federal government,
“every power which has been carved out of the states . . . is in like
manner to be construed strictly, whenever a different construction
might derogate from the rights and powers, which by [the Tenth
Amendment]; are expressly acknowledged to be reserved to them
See id.
17 U.S. (4 Wheat.) 122 (1819).
17 U.S. (4 Wheat.) 518 (1819).
4 BEVERIDGE,  supra note 5, at 282.
A quick glance at the table of contents in constitutional textbooks and treatises
will quickly confirm this. See, e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, CON-
STITUTIONAL LAW,  at xi, 63 (Robert C. Clark et al. eds., 16th ed. 2007).
Not long after McCulloch was decided, Justice Johnson wrote President Monroe
on behalf of himself and the other Supreme Court Justices and informed him that
“the lucid and conclusive reasoning” contained in McCulloch “completely commits
them on the subject of internal improvements.”  Letter from Justice William Johnson
to James Monroe (n.d.), in  SMITH,  supra note 214, at 468, 468–69.  Justice Johnson
suggested that the opinion in McCulloch should be “printed and dispersed through
the Union.” Id. at 665 n.128.
See Tucker, supra note 69, app. at 142–43.

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respectively.”223  Tucker, like Madison, believed that this rule was
made express in the adoption of the Ninth and Tenth
John Marshall, however, rejected strict construction.  In cases like
McCulloch  and  Gibbons, he articulated a vision of federal power not
only expansive for its day, but expansive enough to become the foun-
dational theory of the modern administrative state.225  In 1819, how-
ever, establishing such a vision required transplanting the locus of
delegated sovereignty from Tucker’s “people of the several states” to
the undifferentiated people of the nation as a whole.  In Marshall’s
very first paragraph on substantive principles of law, he attempted to
do just that:
In discussing this question, the counsel for the State of Mary-
land have deemed it of some importance, in the construction of the
constitution, to consider that instrument not as emanating from the
people, but as the act of sovereign and independent States.  The
powers of the general government, it has been said, are delegated
by the States, who alone are truly sovereign; and must be exercised
in subordination to the States, who alone possess supreme
It would be difficult to sustain this proposition.  The Conven-
tion which framed the constitution was indeed elected by the State
legislatures.  But the instrument, when it came from their hands,
was a mere proposal, without obligation, or pretensions to it. . . .
[T]he instrument was submitted to the people.  They acted upon it in
the only manner in which they can act safely, effectively, and wisely,
on such a subject, by assembling in Convention.  It is true, they
assembled in their several states—and where else should they have
assembled?  No political dreamer was ever wild enough to think of
breaking down the lines which separate the States, and of com-
pounding the American people into one common mass.  Of conse-
quence, when they act, they act in their States.  But the measures
they adopt do not, on that account, cease to be the measures of the
people themselves, or become the measures of the State
Id. at 308.
Id. at 143.
See Wickard v. Filburn, 317 U.S. 111, 120 (1942); United States v. Darby, 312
U.S. 100, 124 (1941).  For a discussion of the New Deal Court’s reliance on Marshall
in construing federal power, see 1 ACKERMAN,  supra note 28, at 62; see also Kurt T.
Lash,  The Constitutional Convention of 1937: The Original Meaning of the New Jurispruden-
tial Deal
, 70 FORDHAM L. REV. 459, 487–89 (2001) (discussing New Deal Court deci-
sions involving the scope of the commerce power).
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 402–03 (1819) (emphasis

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By characterizing Maryland as defending the sovereignty of the
state governments, Marshall was able to present his view of federal power
as resting on the sovereignty of the people.  Maryland, however, had
made no such argument.  Walter Jones,227 for example, had insisted
on behalf of Maryland
that the Constitution was formed and adopted, not by the people of
the United States at large, but by the people of the respective
States. . . .  It is, therefore, a compact between the States, and all the
powers which are not expressly relinquished by it, are reserved to
the States.228
By mischaracterizing Maryland’s argument as advocating complete
state sovereignty, Marshall was able to avoid the critical question of
how best to construe powers delegated by the sovereign people of the
states.  Limiting his discussion to the people as a national body, Mar-
shall declared that it was of no relevance that the people ratified the
Constitution in their respective states—“where else should they have
Over and over again in his opinion, Marshall presents the issue as
one involving a contest between “sovereign states” and a “sovereign
people,” the latter being a reference to a national people.  “The gov-
ernment of the Union,” Marshall declared, “is, emphatically, and
truly, a government of the people.  In form and in substance it ema-
nates from them.  Its powers are granted by them, and are to be exer-
cised directly on them, and for their benefit.”230  As far as the Tenth
According to Mark Killenbeck, “Jones was the least prominent of the six men
who argued but had a reputation as a ‘legal genius.’ ”  KILLENBECK,  supra note 1, at
McCulloch, 17 U.S. (4 Wheat.) at 363.
Id. at 403.
Id. at 404–05.  Here Marshall builds upon arguments originally presented by
his fellow Justice, Joseph Story, in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304
(1816).  There, Story argued:
These deductions do not rest upon general reasoning, plain and obvi-
ous as they seem to be.  They have been positively recognised by one of the
articles in amendment of the constitution, which declares, that “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.”
The government, then, of the United States, can claim no powers which
are not granted to it by the constitution, and the powers actually granted,
must be such as are expressly given, or given by necessary implication.  On
the other hand, this instrument, like every other grant, is to have a reasona-
ble construction, according to the import of its terms; and where a power is
expressly given in general terms, it is not to be restrained to particular cases,
unless that construction grow out of the context expressly, or by necessary

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Amendment was concerned, this clause was as irrelevant as the fact of
state-by-state ratification.  The clause was not adopted to control the
interpretation of federal power, but “was framed for the purpose of
quieting excessive jealousies which had been excited.”231  The fact
that the Framers omitted the restrictive term “expressly” indicated
their desire that Congress have “incidental or implied powers” as well
as those expressly enumerated.232  Rather than strict construction,
proper interpretation of federal power “depend[ed] on a fair con-
struction of the whole instrument.”233  And Marshall’s idea of a fair
construction was broad indeed: “[W]here the law is not prohibited,
and is really calculated to effect any of the objects entrusted to the
government, to undertake here to inquire into the degree of its neces-
sity, would be to pass the line which circumscribes the judicial depart-
ment, and to tread on legislative ground.”234
Marshall’s construction of federal power has been embraced so
widely and for so long that it takes some effort to appreciate the radi-
cal nature of his argument.  So long as a law is “calculated to effect”
any of the objects entrusted to the government235 (not actually effects),
Congress could employ any means so long as they were not “prohib-
ited” by the Constitution—regardless of the degree of necessity.  In
his second great opinion on national power, Gibbons, Marshall wrote
that congressional power to regulate commerce was “complete in
itself, may be exercised to its utmost extent, and acknowledges no lim-
itations, other than are prescribed in the constitution.”236  Whatever
one makes of the Ninth and Tenth Amendments, at a minimum they
were designed to prevent just this kind of argument—that the only
limits to federal power were those listed in the Constitution.  Marshall,
however, rejected the idea that any clause in the Constitution sug-
gested any limit to federal power beyond those expressly listed in the
implication.  The words are to be taken in their natural and obvious sense,
and not in a sense unreasonably restricted or enlarged.
Id. at 325–26.  Notice that Story reads the Tenth Amendment as recognizing an undif-
ferentiated national people.  In this passage Story also manages to move from the
federal government having no powers but those “expressly given, or given by neces-
sary implication,” to powers broadly construed unless a strict construction is expressly
required or arises “by necessary implication.” Id. at 326.
McCulloch, 17 U.S. (4 Wheat.) at 406.
See id.
Id. (emphasis added).
Id. at 423.
See id.
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).

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This instrument contains an enumeration of powers expressly
granted by the people to their government.  It has been said, that
these powers ought to be construed strictly.  But why ought they to
be so construed?  Is there one sentence in the constitution which
gives countenance to this rule?  In the last of the enumerated pow-
ers, that which grants, expressly, the means for carrying all others
into execution, Congress is authorized “to make all laws which shall
be necessary and proper” for the purpose.  But this limitation on
the means which may be used, is not extended to the powers which
are conferred; nor is there one sentence in the constitution, which
has been pointed out by the gentlemen of the bar, or which we have
been able to discern, that prescribes this rule.  We do not, there-
fore, think ourselves justified in adopting it.237
When one combines McCulloch and Gibbons, it appears that Mar-
shall had effectively flipped the Ninth and Tenth Amendments on
their heads: a government broadly conceived to have no more than
expressly enumerated powers had been transformed into a govern-
ment with only expressly enumerated restrictions.  Marshall’s national-
ist vision of the Constitution derived much of its rhetorical
persuasiveness by comparing his broad view of federal power with
what he portrayed as the impossibly restrictive view of strict construc-
tionists.  Maryland, according to Marshall, claimed that only the states
“are truly sovereign” and that federal power “must be exercised in sub-
ordination to the States, who alone possess supreme dominion.”238
Once again, Maryland had argued no such thing, but saying so made
Marshall’s opinion seem all the more reasonable.  It allowed Marshall
to take the rhetorical high ground of popular sovereignty, where the
people were conceived as a single sovereign national people and
whose implied powers had no limit beyond those listed in the
In his opening section in McCulloch, Marshall implied that
Madison and other original opponents of the Bank had changed their
minds about the constitutionality of the Bank and had come to share
a broader view of federal power.239  Madison, however, had never
changed his opinion that the Constitution, properly construed, did
not grant Congress the power to charter the Bank.  In his Detached
Memoranda, Madison criticized Marshall for “[i]mputing the concur-
Id. at 187–88.
McCulloch, 17 U.S. (4 Wheat.) at 402.
See id. (“The original act was permitted to expire; but a short experience of the
embarrassments to which the refusal to revive it exposed the government, convinced
those who were most prejudiced against the measure of its necessity, and induced the
passage of the present law.”).

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rence of those formerly opposed to change of opinion, instead of
precedents superseding opinion.”240  Madison rejected Marshall’s
arguments in McCulloch  and wrote that the decision was based on
“erroneous views.”  Top on Madison’s list of Marshall’s “errors” was
the Chief Justice’s assertion about “the people” ratifying the Constitu-
tion, “if [by this he] meant people collectively & not by States.”241
This fundamental error had led to Marshall “[e]xpounding power of
Cong[ress]—as if no other Sovereignty existed in the States supple-
mental to the enumerated powers of Cong[ress].”242
In fact, it was Marshall’s assertion of undifferentiated national
sovereignty that triggered an immediate public outcry following the
publication of McCulloch.  In the broadsides that followed, it was not
so much the Bank that critics deplored as Marshall’s vision of sover-
McCulloch  was excoriated in Republican newspapers as
embracing the same nationalist theories that had led to the adoption
(and defense) of the hated Alien and Sedition Acts.  When one com-
pares the language and reasoning of McCulloch with that of the Minor-
ity Report, the criticisms seem justified.
After Marshall
Marshall’s expansive vision of federal power did not survive his
tenure on the Supreme Court.  Even before his death, the Court
began to back away from his most expansive readings of federal
power.243  Within a few years of his death, the Court had embarked on
what would become the dominant jurisprudence of the nineteenth
James Madison, Detached Memoranda (n.d.), in  JAMES  MADISON: WRITINGS,
supra note 116, at 745, 756.  Despite his objections to the First Bank of the United
States, then-President Madison signed into law the bill for the Second Bank of the
United States. See Act of Apr. 10, 1816, ch. 44, 3 Stat. 266.  Doing so opened him to
criticism as having acted inconsistently with his stated view on the constitutionality of
the First Bank.  Madison insisted, however, that he had not changed his mind, but
nevertheless believed that acquiescence was appropriate as a matter of precedent,
particularly in light of the acceptance of the Bank by numerous political majorities.
See Madison, supra. For a discussion of Madison’s view of precedent and proper con-
stitutional interpretation, see Lash, supra note 25, at 1448.
Madison,  supra note 240, at 756.
In cases like Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827), Willson v. Black
Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829), Providence Bank v. Billings, 29 U.S. (4
Pet.) 514 (1830), Hawkins v. Barney’s Lessee, 30 U.S. (5 Pet.) 457 (1831), and Barron v.
Mayor of Baltimore
, 32 U.S. (7 Pet.) 243 (1833), the Supreme Court opted for either a
narrow view of federal power or a broad view of state authority.

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century—narrow construction of federal power.244  Sensing the need
to shore up the theoretical justifications for his mentor’s nationalist
vision of federal power, Joseph Story dedicated his Commentaries on the
 to the Chief Justice and proceeded to attack compact the-
ories of the Constitution presented in works like Tucker’s View of the
.245  Story was particularly disparaging of those who would
replace Marshall’s vision with a strict reading of federal power:
When this amendment was before Congress, a proposition was
moved, to insert the word “expressly” before “delegated,” so as to
read “the powers not expressly delegated to the United States by the
Constitution.”  On that occasion it was remarked, that it is impossi-
ble to confine a government to the exercise of express powers. . . .
It is plain, therefore, that it could not have been the intention
of the framers of this amendment to give it effect, as an abridgment
of any of the powers granted under the Constitution, whether they
are express or implied, direct or incidental. . . .  The attempts then
which have been made from time to time to force upon this lan-
guage an abridging or restrictive influence are utterly unfounded in
any just rules of interpreting the words or the sense of the instru-
ment.  Stripped of the ingenious disguises in which they are
clothed, they are neither more nor less than attempts to foist into
the text the word “expressly;” to qualify what is general, and obscure
what is clear and defined.246
Notice that Story reads the omission of the term “expressly” as open-
ing the door not only to implied powers but, more crucially, to “inci-
dental” (indirect) powers.  This extends federal powers beyond those
closely associated with expressly defined powers (those directly
involved) and embraces any implied means “incidentally” related to
those powers.  Story thus reads the omission of the term expressly as
requiring the rejection of both the broad and narrow meanings of
“expressly delegated powers.”  Indeed, according to Story, the Tenth
Amendment had no “restrictive” influence whatsoever.  Not surpris-
See Mayor of N.Y. v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837) (narrowly constru-
ing the Commerce Clause and declaring “all those powers which relate to merely
municipal legislation, or what may, perhaps, more properly be called internal police,
are not thus surrendered or restrained; and that, consequently, in relation to these,
the authority of a state is complete, unqualified, and exclusive”); see also Hammer v.
Dagenhart, 247 U.S. 251, 276–77 (1918) (striking down a federal law regulating the
transportation of goods moving in interstate commerce); The Civil Rights Cases, 109
U.S. 3, 24–26 (1883) (striking down federal power to prohibit private discrimination
in public accommodations); The License Cases, 46 U.S. (5 How.) 504, 586 (1847)
(sustaining state law against a claim of exclusive federal power over liquor licenses).
2 STORY,  supra note 4, §§ 1907–1908, at 652–53.

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ingly, Story supported both Marshall’s interpretation of the Tenth
Amendment in McCulloch247 and Marshall’s expansive reading of fed-
eral power in Gibbons.248
As Marshall had recognized in McCulloch, Story knew that the key
to establishing a broad vision of federal power lay in locating sover-
eignty in a national people, and not in the people of the several
states.249  Marshall had argued that although the people may have del-
egated sovereign power to the states prior to the Constitution, they
had “resumed” all such power and then, acting as a national people,
delegated it anew to the federal government with the ratification of
the Constitution.250  Story went even further and argued that there
had never been any sovereign and independent states, but that sover-
eignty had descended on the national people at the moment they
declared their independence in 1776—a view even Story’s biographer
calls “as metaphysical as the states’ rights school he criticized.”251
But Story was fighting a losing battle.  Even before he and Mar-
shall retired, the Court had begun to back away from Marshall’s
nationalist vision of federal power.  Cases such as Willson v. Black Bird
Creek Marsh Co
.,252 and especially Mayor of New York v. Miln,253 rejected
the idea of exclusive federal power over local matters affecting inter-
state commerce (hinted at in Gibbons), and instead flipped the idea on
its head by holding that it was the states that had exclusive authority
over certain municipal matters—regardless of their impact on inter-
state commerce.254  Witnessing the end of Marshall’s nationalist con-
1  id. §§ 1048–1053, at 759–62.
2  id. §§ 1067–1073, at 12–23.
As Story biographer R. Kent Newmyer writes, “The definition and location of
sovereignty in the American federal system was, as Story correctly perceived, the foun-
dation on which all else rested.” See NEWMYER, supra note 245, at 184 (discussing how
the  Commentaries “made sovereignty unequivocally descend on the American people
in 1776”).
See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819) (“It has been
said, that the people had already surrendered all their powers to the State sovereign-
ties, and had nothing more to give.  But, surely, the question whether they may
resume and modify the powers granted to government, does not remain to be settled
in this country.”).
NEWMYER,  supra note 245, at 184.
27 U.S. (2 Pet.) 245 (1829).
36 U.S. (11 Pet.) 102 (1837).
According to Justice Barbour in Miln:
A state has the same undeniable and unlimited jurisdiction over all persons
and things, within its territorial limits, as any foreign nation; where that juris-
diction is not surrendered or restrained by the constitution of the United
States. . . .  That all those powers which relate to merely municipal legisla-
tion, or what may, perhaps, more properly be called internal police, are not

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struction of the Constitution, Justice Story could only pen dissents255
and lament in his letters: “I am the last of the old race of Judges.  I
stand their solitary representative, with a pained heart, and a subdued
confidence.  Do you remember the story of the last diner of a club,
who dined once a year?  I am in the predicament of the last
Despite their best efforts, John Marshall and Joseph Story failed
to exorcise either the term or the principle of “expressly” delegated
power.  In his polemic against the Court’s decision in McCulloch, John
Taylor declared the principles that would ultimately dominate judicial
construction of federal power from Marshall’s retirement until the
time of the New Deal.  According to Taylor, the Federal Constitution
“excludes congress from exercising internal powers over persons and
property, not expressly delegated.”257  The textual source of this prin-
ciple could be found in the Ninth and Tenth Amendments:
The [Ninth] amendment prohibits a construction by which the
rights retained by the people shall be denied or disparaged; and the
[Tenth] “reserves to the states respectively or to the people the powers not
delegated to the United States, nor prohibited to the states.”  The preci-
sion of these expressions is happily contrived to defeat a construc-
tion, by which the origin of the union, or the sovereignty of the
states, could be rendered at all doubtful.258
According to Thomas Law’s antebellum work, The Statesman’s
Manual of the Constitution of the United States:
thus surrendered or restrained; and that, consequently, in relation to these,
the authority of a state is complete, unqualified, and exclusive.
Id.  at 139.  For a discussion of the Taney Court’s move away from the nationalist
vision of John Marshall, see Kurt T. Lash, “Tucker’s Rule”: St. George Tucker and the
Limited Construction of Federal Power
, 47 WM. & MARY L. REV. 1343, 1382–85 (2006).
Dissenting in the Miln case, Story remonstrated:
I have the consolation to know that I had the entire concurrence, upon the
same grounds, of that great constitutional jurist, the late Mr. Chief Justice
Marshall.  Having heard the former arguments, his deliberate opinion was,
that the act of New York was unconstitutional; and that the present case fell
directly within the principles established in the case of Gibbons v. Ogden
. . . .
Miln, 36 U.S. (11 Pet.) at 161 (Story, J., dissenting).
Letter from Joseph Story to Harriet Martineau (Apr. 7, 1837), in 2 LIFE AND
LETTERS OF  JOSEPH  STORY 275, 277 (William W. Story ed., Boston, Little & Brown
(Richmond, Shepherd & Pollard 1820).
Id. at 46.

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The Articles of Confederation also adopted the title “United States
of America,” at the same time declaring that “each State retains its
sovereignty, freedom and independence, and every power and right
which is not expressly delegated to the United States in Congress
assembled.”  The Tenth Amendment of the present Constitution
makes the same declaration.259
Finally, if only to illustrate the durability of the principle beyond
the fall of the Confederacy and the radical states’ rights theories of
men like John C. Calhoun, here is the Supreme Court’s articulation of
the principle in 1869—a year after the adoption of the Fourteenth
The people of the United States constitute one nation, under
one government, and this government, within the scope of the pow-
ers with which it is invested, is supreme.  On the other hand, the
people of each State compose a State, having its own government,
and endowed with all the functions essential to separate and inde-
pendent existence.  The States disunited might continue to exist.
Without the States in union there could be no such political body as
the United States.
Both the States and the United States existed before the Consti-
tution.  The people, through that instrument, established a more
perfect union by substituting a national government, acting, with
ample power, directly upon the citizens, instead of the Confederate
government, which acted with powers, greatly restricted, only upon
the States.  But in many articles of the Constitution the necessary
existence of the States, and, within their proper spheres, the inde-
pendent authority of the States, is distinctly recognized.  To them
nearly the whole charge of interior regulation is committed or left;
to them and to the people all powers not expressly delegated to the national
government are reserved.  The general condition was well stated by Mr.
Madison in the Federalist, thus: “The Federal and State govern-
ments are in fact but different agents and trustees of the people,
constituted with different powers and designated for different
As Chief Justice Salmon Chase’s opinion emphasizes, the principle of
“expressly delegated power” is derived from the theory of popular sov-
ereignty.  The people, whether viewed as a single national collective or
as the many peoples of the individual states, remain the source of all
delegated authority.  As a mere agent of the people, the government
can claim no powers beyond those expressly delegated to it.
STATES 11 (n.p., n.d.).
Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869) (emphasis added).

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James Madison’s Middle Ground 261
Much of the discussion in this Article might appear to recapitu-
late the well-known battles between those who viewed the Constitution
as creating a national people and those who insisted on viewing the
Constitution as no more than a compact between the states.  This
dualist approach is how the arguments in McCulloch are generally
viewed with Marshall representing the (correct) view of a strong
national government and Maryland representing the (unworkable)
compact theory of the Constitution.  In the years following the McCul-
 decision, there did in fact develop a strong movement in favor of
compact theory and the right of states to interpret the Constitution
for themselves, resist the enforcement of disfavored federal law and,
ultimately, to secede from the Union.  Driven by a growing list of
southern state grievances and a hardening determination to preserve
(and extend) slavery at all costs, the Calhounians of the pre–Civil War
era articulated a theory of the Constitution that James Madison
rejected as utterly alien to the original understanding of the
There was, however, a middle way between the extremes of wholly
nationalist and wholly localist (Federalist) readings of the Constitu-
tion.  Just as Madison rejected the theory of the nullifiers, he just as
strongly rejected the nationalist reading of the Constitution pressed
by Alexander Hamilton and (later) John Marshall.  Articulating a view
of the Constitution that he would hold for the rest of his life,
Madison’s famous Federalist No. 39 presents the Constitution as a com-
promise between nationalist and federalist theories of government:
The proposed Constitution, therefore . . . is, in strictness,
neither a national nor a federal Constitution, but a composition of
both.  In its foundation it is federal, not national; in the sources
from which the ordinary powers of the government are drawn, it is
partly federal and partly national; in the operation of these powers,
it is national, not federal: In the extent of them, again, it is federal,
not national; and, finally in the authoritative mode of introducing
amendments, it is neither wholly federal nor wholly national.263
I owe this subpart’s title to the fine work of Charles Lofgren. See Lofgren,
supra note 30, at 336 (writing of James Madison’s “Middle Ground” and its fate).
See Letter from James Madison to Edward Everett (Aug. 28, 1830), in  JAMES
MADISON: WRITINGS,  supra note 116, at 842, 842 (rejecting the doctrine of nullifica-
tion); Letter from James Madison to Mathew Carey (July 27, 1831), in JAMES MADISON:
WRITINGS,  supra note 116, at 858, 858–59 (same).
THE FEDERALIST NO. 39 (James Madison), supra note 34, at 246.

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Notice that Madison sees the foundation of the Constitution as fed-
—meaning that it required the consent of the people in the sev-
eral states, and not a single national plebiscite, to bring the
Constitution into being.  This is a critical move in that it makes the
powers of the national government a delegation from sovereign states.
However, even if the Constitution was brought into being by the peo-
ple in the several states, it necessarily created a national people at the
same time it preserved the independent existence of the states.  Thus,
future amendments would involve a mechanism both national and
federal.  Unlike the original ratification, dissenting states could be
bound by future amendments, but those amendments would be rati-
fied on a state-by-state basis, and not through a single national vote.264
The political theory driving this “mixed” view of the Constitution
was not one of divided sovereignty (the dreaded imperium in imperio),
but one of divided sovereign power.265  The people had exercised their
sovereign right to delegate some degree of sovereign power to the
national government while retaining a degree of sovereign authority
to the independent states.  States that joined the Union were obli-
gated to obey legitimate exercises of federal power (expressly so
under the Supremacy Clause).  However, because the delegation of
authority which created the federal government came out of the inde-
pendent states, it was to be strictly construed—as required by the
norms of international law and as promised by the advocates of the
Madison’s simultaneous struggle against the views of nullifiers
and the views of the nationalists reflects his lifelong effort to balance
these competing ideas of sovereign authority.  When the national gov-
ernment exercised power over seditious speech, Madison opposed the
effort on the grounds that it exceeded the properly interpreted
express powers of the government, thus violating the Tenth Amend-
ment.266  When the nullifiers of the 1820s and ’30s attempted to use
Madison’s arguments against the Alien and Sedition Acts in support of
their claim that states could unilaterally nullify federal law, Madison
See U.S. CONST. art. V (requiring two-thirds of the states (or two-thirds of both
houses of Congress) to propose an amendment and three-fourths of the states to
See Lofgren, supra note 30, at 341; see also MORGAN,  supra note 76, at 267 (“To
that end [Madison] envisioned a genuine national government, resting for its author-
ity, not on the state governments and not even on the peoples of the several states
considered separately, but on an American people, a people who constituted a sepa-
rate and superior entity, capable of conveying to a national government an authority
that would necessarily impinge on the authority of the state governments.”).
See supra note 199 and accompanying text.

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opposed  that effort as misreading his work and violating the Constitu-
tion’s balance of federal and state authority.267  Over and over again,
Madison found himself opposing the exaggerated claims of one side
or the other in the neverending battle to balance state and federal
Ultimately, of course, the center did not hold.  A Civil War and
the enactment of the Reconstruction Amendments significantly
altered the original balance between state and federal authority.
(Despite the states losing a significant degree of authority over matters
originally viewed as “local,” nothing in the Reconstruction Amend-
ments altered the political nature of either the federal or state govern-
ments.)  Federal power remained limited under the theory of
delegated sovereignty268 and enumerated power, while the states
remained constituent parts of the constitutional structure through
their continued independent role in constitutional amendments.  As
long as the federal government remained an agent of the people,
whether viewed in their national or state-level capacity, the proper
rule of construction regarding delegated authority remained the
As Gordon Wood recounts in his magisterial Creation of the Ameri-
can Republic, the Federalists succeeded in their efforts to supplant the
old Articles of Confederation with a new Constitution by stressing the
ultimate sovereignty of the people.269  Although popular sovereignty
was a new concept in American political theory, by 1787 it had never-
theless become the dominant understanding of the legitimate source
of government authority.  Vestiges of the older system remained, how-
ever, including the assumption that “all rights not expressly and
unequivocally reserved to the people are impliedly and incidentally
relinquished to rulers.”270  State governments, for example, were pre-
sumed to have general authority to act on the people’s behalf absent
an express restriction in the state constitutions’ declarations of rights.
It was due to this vision of “expressly retained rights” that the Antifed-
eralists objected to the omission of a Bill of Rights in the proposed
See Letter from James Madison to Edward Everett, supra note 262, at 852
(claiming that the nullifiers were wrong to claim the Virginia Resolutions supported
their cause).
See, e.g., Alden v. Maine, 527 U.S. 706, 758–59 (1999).
See WOOD,  supra note 52, at 536–43.
3  ELLIOT’S  DEBATES,  supra note 9, at 445 (reporting the statement of Patrick
Henry on June 14, 1788).

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Constitution.271  In response, the Federalists flipped this vision com-
pletely around and, stressing the emergent theory of popular sover-
eignty, insisted that all powers and rights were retained to the people
in the states other than those expressly delegated away.  This was the
vision of federal power presented to the state conventions, and, as
James Madison insisted his entire life, this was the vision state conven-
tions reasonably relied upon in ratifying the Federal Constitution.
This combination of Federalist explanation and ratifier reliance
explains how a word could be omitted from the Tenth Amendment,
but nevertheless embraced both before and after the adoption of the
Bill of Rights.  The concept of expressly delegated power and retained
sovereignty was an accepted principle of the law of nations; sovereign
power must be assumed retained absent an express delegation.  Put
another way, delegated power must be narrowly construed in favor of
the grantor.  Despite John Marshall’s best efforts to portray the
national government as having received delegated power from an
undifferentiated people of the United States, the founding vision of
independent peoples endured, as did the concept of strict construction
of delegated sovereign power.  It was not until the twentieth century
that the rule of strict construction withered and Marshall’s vision was
revived to provide historical support for the rise of the modern regula-
tory state.272
Today, although the Tenth Amendment has seen its fortunes rise
and fall over the past century, the text remains universally accepted as
a statement of states’ rights—even if the text is treated as expressing
no more than a truism.273  This renders the Amendment’s closing dec-
laration of the ultimate sovereignty of the people as something of an
oddity—either ignored altogether or construed in a manner com-
pletely the opposite of the same words in the Ninth Amendment.  In
the beginning, however, the words “by the people” and “to the peo-
ple” represented the same concept of retained sovereignty, a concept
which necessarily entails a strict construction of delegated power.
The original meaning of the Tenth Amendment thus sheds light
on the original meaning of the Ninth.  As dual expressions of popular
sovereignty, the clauses mutually reinforced the idea of limited federal
power.  This is how Madison presented the clauses, and this is how the
two Amendments were read for the first one hundred and fifty years
See WOOD,  supra note 52, at 541.
See  Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S.
100 (1941); supra note 225 and accompanying text.
See, e.g., New York v. United States, 505 U.S. 144, 156 (1992).

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of the Constitution.274  Also, because the principle of expressly dele-
gated power applied to all delegated powers, the attendant rule of
strict construction would have applied to the interpretation of Article
III and the jurisdiction of the federal courts.  When the Supreme
Court ruled in Chisholm v. Georgia275 that Article III allowed federal
courts to hear suits brought by private individuals against the states,276
the immediate response by state legislatures was that the Court had
engaged in an unduly broad reading of the text.  The Eleventh
Amendment’s declaration that Article III shall not be construed to allow
such suits in federal court277 echoes the same principle of strict con-
struction that informed the Ninth and Tenth Amendments.  This,
along with the fact that the Amendment was proposed less than three
years after the adoption of the Ninth and Tenth Amendments, sug-
gests there may be far more commonality between these three amend-
ments than has generally been recognized.278
Finally, if the reading of history in this Article is accurate, then it
calls into question the traditional reading of John Marshall’s opinion
in  McCulloch and its place in our understanding of the original mean-
ing of federal power.  Marshall’s reading of the Tenth Amendment
adopted a deeply contested understanding of “the people” and
rejected the principle of expressly delegated power which had been
promised by the proponents of the Constitution.  Although Marshall
correctly identified the original understanding that Congress would
have implied powers, his rejection of a narrow interpretation of those
implied powers conflicts with the historical record and the original
understanding of retained sovereign power and rights.
In terms of modern doctrine, it appears that the Supreme Court’s
recent attempts to enforce federalist limits on congressional authority
have greater textual and historical warrant than previously sup-
See Lash,  Lost Jurisprudence,  supra note 29, at 643 (observing that Madison and
other writers of his generation regarded the Ninth and Tenth Amendments as “twin
guardians of federalism”).  As I have discussed elsewhere, although the clauses are
mutually reinforcing and overlap to some degree, they nevertheless express distinct
principles of limited federal power. See Lash, Textual-Historical Theory,  supra note 29,
at 919–21.
2 U.S. (2 Dall.) 419 (1793).
Id. at 473–78 (opinion of Jay, C.J.).
U.S. CONST. amend. XI (“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”)
I plan to explore these connections in an upcoming article.

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posed.279  Obviously, the original scope of state autonomy was signifi-
cantly curtailed by the adoption of later amendments, in particular
the Fourteenth.280  However, assuming that the Ninth and Tenth
Amendments were not fully repealed in 1868, there remains the
important work of determining where national authority ends and the
retained sovereign powers and rights of the people in the states
begin.281  Indeed, the history presented in this Article suggests that
the Supreme Court’s enforcement of federalist separation of powers is
as much an aspect of enforcing the Bill of Rights as is the Court’s
enforcement of individual rights.  An adequate exploration of all
these issues must be left to later works.  The goal of this particular
Article is to challenge the blithe assumption that the omission of a
word requires the rejection of a principle.
See, e.g., United States v. Morrison, 529 U.S. 598 (2000); Printz v. United States,
521 U.S. 898 (1997); Lopez v. United States, 514 U.S. 549 (1995); New York v. United
States, 505 U.S. 144 (1992). But see Gonzales v. Raich, 545 U.S. 1 (2005) (broadly
interpreting the commerce power).
For a discussion of how the historical Ninth and Tenth Amendments might be
reconciled with the Fourteenth Amendment, see Lash, supra note 145, at 875–79.
As is usually the case, James Madison provided us with a number of clues
regarding how this principle of expressly delegated power might be put into practice.
Madison believed that, over time, judicial review would produce specific doctrines
and “legal landmarks” clarifying the area of retained sovereignty even as it allowed for
the legitimate exercise of federal authority.  We have some idea of what Madison
viewed as proper landmarks. See supra note 215 (internal improvements veto); supra
notes 162–163 (the bank speech).  But Madison also left room for “political prece-
dent” whereby an otherwise unduly broad exercise of federal power might receive
sufficient sanction over time that later courts would be obliged to uphold the power
as a matter of entrenched precedent.  For an analysis of Madison’s views on original-
ism and precedent, see Lash, supra note 25, at 1444–53.

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