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On the Omission of the Term “Expressly” from the Tenth Amendment

By: Kurt T. Lash

In his recent review of Lawrence Lessig’s new book, “Fidelity and Constraint,” Georgetown law professor John Mikhail takes issue with Lessig’s account of the New Deal. Mikhail rejects Lessig’s implied suggestion that the New Deal Court departed from the original meaning of the Constitution in general and the Tenth Amendment in particular.

Instead, Mikhail insists that New Deal cases like United States v. Darby restored the original minimalist understanding of the Tenth Amendment—an understanding originally presented by Chief Justice John Marshall in McCulloch v. Maryland.  In McCulloch, Marshall pointed out that, although the Articles of Confederation limited the federal government to “expressly” delegated powers, the drafters of the Tenth Amendment omitted the word “expressly.”

The drafters’ omission, Marshall insisted, was the key to properly understanding both the original delegations of power in Article I and the original meaning of the Tenth Amendment. In his review of Lessig’s book, Mikhail argues that the New Deal Court in Darby was right to restore Marshall’s minimalist understanding of the Tenth Amendment, and Mikhail specifically relies on Marshall’s argument about the omitted word “expressly” in support of his claim that “Darby is more faithful to the original Constitution than Hammer [v. Dagenhart].”

Repeated in every first-year law school course on Constitutional Law, Marshall’s point in McCulloch about the omitted word “expressly” is probably one of the most commonly made claims about the original understanding of Tenth Amendment. It is also almost certainly wrong. The omission of the word “expressly” from the Tenth Amendment tells us nothing about whether the ratifying public understood the original Constitution as communicating the principle of expressly enumerated powers, nor does the omission tell us whether the public that ratified the Bill of Rights continued to hold this view.

As I have written previously, 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.

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.

For example, throughout the ratification debates Federalist proponents of the Constitution insisted that Congress would have only expressly delegated powers. 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.”

Speaking 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.”

Finally, in one of the most famous decisions of the Supreme Court’s first decade, Calder v. Bull, Justice Samuel Chase declared that “the several State Legislatures retain all the powers of legislationdelegated to them by the State Constitutions; which are not EXPRESSLY taken away by the Constitution of the United States.” (emphasis in opinion)

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, to the Reconstruction era, to the Lochner era, and right up to the modern Supreme Court.  (See Kurt Lash, The Original Meaning of an Omission, 83 Notre Dame L. Rev. 1889, 1891-93 (2008).

The Founders who insisted that Congress had but expressly delegated powers understood and accepted the general principle of implied powers. They repeatedly noted that expressly delegated powers impliedly authorized those means “clearly” necessary for accomplishing the enumerated ends.  Implied powers, however, were limited to those means closely associated with the original express delegation.  Put another way, implied powers must be “necessary and proper.”

Marshall, of course, rejected such a restricted understanding of the implied powers of Congress. In McCulloch, Marshall used an original intent argument regarding the omitted term “expressly” to support his broad understanding of both implied powers and the Necessary and Proper Clause (so did Marshall’s protégé, Joseph Story).

Neither Marshall nor Story, however, were successful in vanquishing the idea that Congress enjoyed only expressly delegated powers. In Lane County v. Oregon, a case decided a year after the country ratified the Fourteenth Amendment, Chief Justice Salmon Chase declared, “to them [the states] and to the people all powers not expressly delegated to the national government are reserved.”

Which brings us to Hammer v. Dagenhart—the case John Mikhail insists that Darby rightly buried. In Hammer, Justice Day declared that, “[i]n interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved.”

This is not only an obvious rebuke to Marshall’s formulation in McCulloch (“we must never forget that it is a Constitution we are expounding”), he was using the same language as Chief Justice Chase’s opinion in Lane County–language one can trace all the way back to the original ratification debates.

Whatever else might be correct about McCulloch, Marshall’s claims about the interpretative implications of the omitted term “expressly” conflict with a great deal of evidence regarding the original understanding of the original Constitution. John Mikhail’s reliance on Marshall’s “omission” argument is common, but it is no more convincing today than when Marshall first made it decades after the adoption of the original Constitution.

Lawrence Lessig is right to suggest that, by relying on their own broad understanding of Marshall’s opinions, the New Deal Court significantly departed from the originally restricted understanding of the implied powers of Congress and the original principle communicated by the Tenth Amendment.