The Omission of the Word “Expressly” from the Tenth Amendment

Contemporaneous views on the original understanding of the tenth amendment often revolve around the omission of a single word – expressly.  The purpose of this article is to examine why the word “expressly” was not included in the tenth amendment.  To achieve the goal we must examine the Articles of Confederation and Perpetual Union and the deficiencies therein, the state constitution ratifying conventions, congressional debates regarding amendments eventually called the Bill of Rights, and some early Supreme Court decisions.  Moreover, an examination of the tenth amendment is incomplete without its companion ninth amendment.  Both the ninth and the tenth amendments are ones of construction and go hand-in-hand with one another.

The Articles of Confederation and Perpetual Union

Under the Articles of Confederation the general government was restricted in several ways.  One such restriction was Article II which read:  Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.  [Emphasis added.]  Furthermore, all amendments required unanimous approval from all thirteen states to amend The Articles.  These two restrictions along with other deficiencies rendered the general government incompetent to manage the affairs of the union.

The mere presence of the word expressly was literal in every interpretation of The Articles.  If the delegated power was not expressly enumerated Congress was not authorized to act.  There were very few cases where powers not expressly delegated were exceeded under The Articles.  Additionally, proposed amendments to The Articles were defeated by a small minority of states, and in several cases, a single state blocked the ratification of a proposed amendment.

For these and other reasons a convention was called to revise The Articles of Confederation and Perpetual Union.

Constitutional Convention

The product of the constitutional convention was a proposal; one without force and only for the consideration of the states.  At the conclusion of the convention three delegates did not sign the Constitution.  One of those three men was George Mason of Virginia.  Mason drafted the Virginia Bill of Rights which Thomas Jefferson relied heavily upon when drafting the Declaration of Independence.  Mason would not sign primarily because there was not a Bill of Rights included in the Constitution.

The proposed Constitution was presented to the United States in Congress assembled with the desire that Congress would speak favorably about ratification.  Debates ensued from September 26th through September 28th whether Congress could amend the Constitution prior to sending it to the states.  Richard Henry Lee proposed several amendments, including the need for a Bill of Rights, which did not pass.  The primary argument against amendments by Congress was that the Constitution would be considered an act of Congress and under The Articles must be sent to state legislatures for ratification.  Which meant the Constitution would require unanimous approval from all thirteen states.  Moreover, the mere act of amendment would favor disapproval by the states as the proposed Constitution would be viewed inferior if Congress could not send it to the states without alternation.  Needless to say Congress decided to send the Constitution to state ratifying conventions, rather than state legislatures, with a neutral position regarding ratification.  The Congress did not recommend for or against ratification.  Instead Congress agreed to remain neutral.

Congressional Debates on the Bill of Rights

Several states ratified the Constitution on the condition that a Bill of Rights be proposed and sent to the states for ratification.  Roughly two hundred amendments were proposed by the thirteen states.  James Madison reviewed all two hundred amendments and consolidated them into a list of twenty amendments.  Madison introduced the twenty amendments to the first Congress.  Eventually, Congress passed twelve amendments which were sent to the states for ratification.  Ten amendments were ratified by the states in short order.  Of the two amendments that were not ratified, one eventually was ratified by 3/4ths of the states nearly 200 years later.  There is something quite interesting about the eight amendments that did not receive congressional approval.  That is, a number of the eight amendments were restrictions on the states.  In every case, a proposed amendment that restricted the states started with “No state shall”.  This is important as these words appear in future amendments to the constitution (i.e. fourteenth amendment).

We know conclusively that the Bill of Rights applied only to the federal government.  The preamble to the Bill of Rights states; THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was a shield, erected to prevent the federal government from abusing its powers or misconstruction of the Constitution itself.  There is a substantial difference between the first eight amendments and the last two amendments.  The ninth and tenth amendments are amendments of construction.  That is, these amendments convey instructions and/or restrictions on constitutional construction.  Also, note the wording of the eleventh amendment ratified after the Supreme Court’s decision in Chisholm v. Georgia.  The Court’s conclusion contradicted the states’ understanding at the time of ratification and an amendment was ratified providing for a rule of construction on the issue.

The ninth amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.  In summary, this says that there are other rights not enumerated that are retained by the people, and any statutory law enacted within the pursuance of the Constitution cannot disparage those rights not specified yet retained by the people.  This is a latitudinal restriction on laws enacted within the enumerated powers themselves to not abridge or deny any rights not enumerated.

The tenth amendment states, “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”.  Notice that the tenth amendment excludes the word “expressly” whereas The Articles of Confederation included the word.  This omission leads some commentators to conclude there are implied powers.

In the congressional debates over the wording of the tenth amendment there were several attempts to insert the word “expressly” into the tenth amendment.  Madison opposed those efforts but not on grounds that the government wasn’t one of expressly enumerated powers.  Madison’s opposition was based on the nugatory effect the word “expressly” would have on the necessary and proper clause.  Advocates for inclusion were concerned about the abuse of enumerated powers; whereas opponents were concerned the word “expressly” would diminish or eliminate entirely the necessary and proper clause.  Madison himself reminded the House of Representatives that proponents for ratification assured the state conventions the federal government could not exceed its expressly enumerated powers.

State Ratifying Conventions

The state ratifying conventions is where delegates, recommended by the State legislatures, met to debate the proposed Constitution.  Constitutional scholar Rob Natelson’s book The Original Constitution explains that any original understanding of the constitution must come from the state ratifying conventions.  The states decided to ratify, or not, the Constitution based on representations made at the thirteen state ratifying conventions by advocates for ratification.  It was the explanations and assurances about the meaning of the Constitution that formed the basis for or against ratification.  Therefore, whenever possible, the original understanding of the Constitution must be based on the understanding of the states.

Advocates for ratification called themselves the Federalists.  While those opposing ratification, especially without amendment, were called the Anti-Federalists.  Opponents issues varied greatly but some of the more common concerns were the lack of a Bill of Rights and several clauses (such as the general welfare, and necessary and proper) would be construed to mean a plenary grant of power.  Unlike The Articles, nowhere in the Constitution did the word “expressly” appear in regards to powers delegated to the federal government.  The omission led many Anti-Federalist writers such as Cato, Brutus, and Centinel to believe construction would result in the federal government assuming and usurping powers not expressly delegated.

Several state conventions conveyed concerns regarding loose construction.  But, it was not the Anti-Federalists demanding a strict construction, it was the Federalists representations that the powers delegated to the federal government under Article I Section VIII and a few others throughout the Constitution were expressly delegated.  Further discussion revolved around the meaning of the general welfare clause and the necessary and proper clause.  A detailed discussion on these two topics is beyond the scope of this article.  To summarize, the representations made by advocates for ratification was the general welfare clause was a restrictive clause and not a plenary grant of power.  Likewise, the necessary and proper clause was included to give some latitude to Congress when acting within the foregoing enumerated powers in Article I Section VIII.  In other words, the necessary and proper clause was not a separate, definitive power; it was to allow some latitude within the enumerated powers and to avoid conflicts that arose under The Articles of Confederation due to the word expressly.

Ultimately, the representations made by advocates for ratification at the state ratifying conventions for strict construction of the constitution repeatedly assured state conventions the powers were expressly enumerated.

The following text is from a paper authored by Professor Kurt T. Lash of the Loyola Law School.

During the ratification debates Federalist proponents of the Constitution insisted that Congress had only expressly delegated power. In the New York Ratifying Convention, Alexander Hamilton declared that “whatever is not expressly given to the Federal Head, is reserved to the members.”

 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.”

 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.”  Writing shortly 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.” 

According to Representative 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.”

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 definition 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.”

According to Roger Sherman, a member of the Philadelphia Convention from Connecticut, “[t]he powers vested in the federal government are clearly defined, so that each state will retain its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign state not particularly delegated to the government of the United States.” [Emphasis original.]

Charles Pinckney address to the South Carolina House of Representatives defending the proposed Constitution said, “The distinction which has often been taken between the nature of a federal 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 upon points that were, by express compact, reserved to the people.”  In Massachusetts, newspapers published Pinckney’s “Observations on the new federal Constitution” where he said “The 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 government of the United States.”

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, delegated to them by the State Constitutions; which are not EXPRESSLY taken away by the Constitution of the United States.”(emphasis supplied by Justice Chase).

McCulloch v. Maryland

Contemporaneous views supporting broad implied and incidental powers rely upon the Marshall Court’s decision in McCulloch v. Maryland where Chief Justice Marshall advanced the concept of implied and incidental powers.  Though Marshall was present at the Virginia ratifying conventions he ignored the representations made by Madison and others that the enumerated powers were expressly delegated and relied upon a broad interpretation of the necessary and proper clause to uphold the second national bank of the United States.

While this is not an exhaustive analysis of the case the Court’s opinion included the following:

1)       The clause is placed among the powers of Congress, not among the limitations on those powers.

2)      Its terms purport to enlarge, not to diminish, the powers vested in the Government.  It purports to be an additional power, not a restriction on those already granted.

The Marshall Court’s interpretation of the necessary and proper clause was the most expansive view that could be taken.  In other words, it was not restriction whatsoever, as the Court’s interpretation was a “means” to execute an “end”.  The Court acknowledges the end to be one of the foregoing enumerated powers.  However, the broad interpretation of the means essentially renders the necessary and proper clause nugatory in the restrictive sense and acknowledges a broad application of what may be construed as necessary and proper.

The Marshall Court advocates that Congress shall determine whatever means are required to execute the foregoing enumerated powers.  That is an expansive interpretation.  Moreover, the original understanding of the necessary and proper clause was to allow discretion in executing the foregoing enumerated powers but with the provision that the means were necessary and proper.  The provision did not mean easy or convenient.  The provision did not embody personal or party ideology to advance an agenda.  It meant those implied or incidental powers must be both necessary and proper.

ObamaCare

Recently, the Supreme Court heard three days of arguments on the case colloquially referred to as Obamacare.  Let’s assume for a moment that Congress has the power to regulate the health care insurance industry under the commerce clause.  The government attorney argued the individual mandate was constitutional due to the necessary and proper clause.  That is, implied/incidental powers under the necessary and proper clause were a means to execute the foregoing enumerated power “to regulate commerce”.

If the Court rules the individual mandate is constitutional it would annihilate the ninth amendment.  The ruling would violate rights not otherwise enumerated yet retained by the people.  Those rights include the unalienable rights of association and to contract.  Even though the Court may rule Obamacare is constitutional and the individual mandate is constitutional under the necessary and proper clause, the law violates the ninth amendment.  Therefore, the individual mandate would be unconstitutional because it violates rights retained under the ninth amendment.  To reiterate, the ninth amendment provides for latitudinal restrictions on laws if they violate either rights enumerated or other rights not enumerated but retained by the people.  In my opinion, the individual mandate clearly violates the ninth amendment.

Conclusion

The Marshall Court’s opinion in McCulloch v. Maryland is used to by Congress to legislate in areas not otherwise enumerated or to legislate under the guise of broad expansive implied/incidental powers ignoring whether they are necessary and proper.  The Marshall Court expanded Congress’s powers contrary to the limiting nature of the necessary and proper clause understood at the time of ratification.

Both the ninth and the tenth amendment secured the Federalists representation of strict construction.  Delegated sovereign power was understood at the time of ratification to embody strict construction of delegated authority.  In other words, all powers not expressly delegated were assumed to be retained by the sovereign.  The ninth and tenth amendments secure the concept of popular sovereignty embraced and understood by the founding generation.

Advertisements

Leave a comment

Filed under Constitution

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s