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ARTICLES
THE ORIGINAL MEANING OF AN OMISSION: THE
TENTH AMENDMENT, POPULAR
SOVEREIGNTY, AND “EXPRESSLY�
DELEGATED POWER
Kurt T. Lash *
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1890
R
I. THE HISTORICAL BACKGROUND OF THE TENTH
AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1897
R
A. Methodology  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1897
R
B. The Traditional Story  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1899
R
C. Article II of the Articles of Confederation  . . . . . . . . . . . . . . . . . . 1902
R
D. The Federalist Response  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1905
R
E. The State Conventions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1906
R
F.
Sovereignty and the Construction of Delegated Power  . . . . . . . 1908
R
G. The Other Meaning of Expressly Delegated Powers  . . . . . . . . . 1911
R
H. A Preexistent Principle  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1913
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II. THE FRAMING AND ORIGINAL UNDERSTANDING OF THE TENTH
AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1915
R
A. The State Convention Declarations and Proposed
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1915
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B. The Virginia Ratifying Convention  . . . . . . . . . . . . . . . . . . . . . . 1918
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ï›™ 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.
1889
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C. Summary of the State Conventions  . . . . . . . . . . . . . . . . . . . . . . . 1919
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D. Drafting the Tenth Amendment  . . . . . . . . . . . . . . . . . . . . . . . . . . 1920
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E. Popular Sovereignty and the Tenth Amendment  . . . . . . . . . . . 1922
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III. POST-SUBMISSION COMMENTARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1926
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A. The Bank Controversy  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1927
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B. The Alien and Sedition Acts Controversy  . . . . . . . . . . . . . . . . . 1935
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C. The Nationalism of John Marshall  . . . . . . . . . . . . . . . . . . . . . . . 1940
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1.
Popular Sovereignty and 
McCulloch  . . . . . . . . . . . . . . . 1941
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2.
After Marshall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1946
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D. James Madison’s Middle Ground  . . . . . . . . . . . . . . . . . . . . . . . . 1951
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1953
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INTRODUCTION
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
1
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,
M’CULLOCH V. MARYLAND (2006), and RICHARD E. ELLIS, AGGRESSIVE  NATIONALISM
(2007).  Probably the best (and most influential) general treatment of the Marshall
Court is G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE (1988).
2
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.â€� 
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.’ â€�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
3
Id.  at 406.
4
2  JOSEPH  STORY, COMMENTARIES ON THE  CONSTITUTION OF THE  UNITED  STATES
§ 1908, at 653 (photo. reprint 1994) (Melville M. Bigelow ed., Boston, Little, Brown &
Co. 5th ed. 1891).
5
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.�).
6
See, e.g. , 3 WILLIAM WINSLOW CROSSKEY & WILLIAM JEFFREY JR., POLITICS AND THE
CONSTITUTION IN THE HISTORY OF THE UNITED STATES 36 (1980); CALVIN H. JOHNSON,
RIGHTEOUS  ANGER AT THE  WICKED  STATES 120 (2005) [hereinafter JOHNSON, RIGHT-
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 Truism in
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
Texts
, 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
, 36 SAN DIEGO L.
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
Originalism
, 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).
7
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.â€�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.â€�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.â€�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).
8
See infra  note 176 and accompanying text.
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9
2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
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.
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10
4  ELLIOT’S  DEBATES,  
supra   note 9, at 253–63 (reporting a speech by Charles
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Pinckney before the South Carolina House of Representatives on January 16, 1788).
11
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.â€�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
12
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
13
JOHN  PAGE, ADDRESS TO THE  FREEHOLDERS OF  GLOUCESTER  COUNTY 28 (Rich-
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
inserted?�).
14
Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798).
15
See infra  notes 66–68 and accompanying text.
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16
See infra  note 260 and accompanying text.
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17
See infra  note 244 and accompanying text.
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18
See infra  note 279 and accompanying text;  see also  Griswold v. Connecticut, 381
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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 â€�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 peopleâ€� was suggested
by the same man who wanted to add the term “expresslyâ€�—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
19
See infra  notes 162–69 and accompanying text.
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20
U.S. CONST. amend. X (emphasis added).
21
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
construed.
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
22
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.â€�  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.
23
22 U.S. (9 Wheat.) 1 (1824).
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I.
THE HISTORICAL BACKGROUND OF THE TENTH AMENDMENT
A.
Methodology
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
Constitution.26
24
See  Randy E. Barnett,  An Originalism for Nonoriginalists , 45 LOY. L. REV. 611, 620
(1999).
25
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�).
26
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
Constitution.28
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.
27
See  Bruce Ackerman,  The Living Constitution , 120 HARV. L. REV. 1737, 1804–05
(2007).
28
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
131–229 (1991); 2 BRUCE  ACKERMAN, WE THE  PEOPLE: TRANSFORMATIONS 32–95
(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
CONSTITUTION 89–117 (2003); LARRY D. KRAMER, THE  PEOPLE  THEMSELVES 9–34
(2004); Jack M. Balkin, 
Abortion and Original Meaning , 24 CONST. COMMENT. 291
(2007).
29
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
Jurisprudence
]; 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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B.
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
30
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-
tion
,   in   CONSTITUTIONAL  GOVERNMENT IN  AMERICA 331 (Ronald K.L. Collins ed.,
1980).  Others include THOMAS B. MCAFFEE ET AL., POWERS RESERVED FOR THE PEOPLE
AND THE STATES 39–44 (2006); Jack N. Rakove, 
American Federalism: Was There an Origi-
nal Understanding?
,   in  THE TENTH AMENDMENT AND STATE SOVEREIGNTY,   supra  note 6,
R
at 107.  For a general account of the adoption of the Bill of Rights, see LEONARD W.
LEVY, ORIGINS OF THE BILL OF RIGHTS (1999).
31
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.â€�).  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.
R
32
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-
mentâ€�);  
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�).
33
See infra  notes 85–86 and accompanying text (discussing the concerns of
R
Edmund Randolph).
34
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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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
restriction.35
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?â€�); 
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
“dangerous�).
35
THE FEDERALIST NO. 44 (James Madison), 
supra  note 34, at 284;  see also  STANLEY
R
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).
36
THE FEDERALIST NO. 21 (Alexander Hamilton), 
supra  note 34, at 139.
R
37
See  LEVY, supra  note 30, at 30–31.
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38
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
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 “expresslyâ€� 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
39
1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
40
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.â€�  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
C.
Article II of the Articles of Confederation
After formally announcing the break with England, the newly
“free and independent Statesâ€�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.
41
The additional attempt was made on August 21. 
See id.
42
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.
R
43
THE DECLARATION OF INDEPENDENCE para. 31 (U.S. 1776).
44
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.
45
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
divided.46
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
assembled.�47
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-
46
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.,
1980).
47
ARTICLES OF CONFEDERATION art. II (U.S. 1781).
48
See  JAMES  WILSON, CONSIDERATIONS ON THE  BANK OF  NORTH  AMERICA (1785),
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
60–79.
49
According to Hamilton in 
Federalist No. 21 :
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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
R
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,
R
at 60–79.
50
See  THE FEDERALIST NO. 33 (Alexander Hamilton),  supra  note 34, at 203 (refer-
R
ring to the Necessary and Proper Clause as “the sweeping clause�).
51
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.
R
52
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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D.
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
R
(listing consolidation as one of the main issues recurring in Antifederalist writings
based on the concern that “consolidated government undermines both republican-
ism and libertyâ€�); DANIEL  WIRLS & STEPHEN  WIRLS, THE  INVENTION OF THE  UNITED
STATES SENATE 136 (2004) (naming “consolidationâ€� 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).
53
4 ELLIOT’S DEBATES,  
supra  note 9, at 259–60 (reporting the speech of Charles
R
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.
54
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-
tions
, SALEM MERCURY].
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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.â€�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.â€�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
disregarded.�57
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
Constitution.
E.
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
55
Editorial, SALEM MERCURY, Jan. 15, 1788, at 1.
56
A Correspondent , N.J.J. (Elizabethtown, N.J.), Dec. 19, 1787, at 2.
57
Alexander White, 
To the Citizens of Virginia , WINCHESTER VA. GAZETTE, Feb. 29,
1788, 
reprinted in  8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITU-
TION 438, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988).
58
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
R
illustrates, the concept of expressly delegated power was inextricably linked to the
emerging concept of popular sovereignty. 
See id.
59
4 ELLIOT’S DEBATES,  
supra  note 9, at 140–41 (reporting the remarks of Archi-
R
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
Constitution.�60
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.â€�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.â€�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.
60
Id.  at 142 (reporting the statement of Samuel Johnston before the North Caro-
lina convention on July 22, 1788).
61
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
THE  DOCUMENTARY  HISTORY OF THE  RATIFICATION OF THE  CONSTITUTION, at xl–xlii
(John P. Kaminski et al. eds., 1981).
62
2 ELLIOT’S DEBATES,  
supra  note 9, at 362 (reporting the remarks of Alexander
R
Hamilton to the New York ratifying convention on June 28, 1788).
63
Id.  at 362–63 (emphasis added).
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F.
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 Nationsâ€�).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-
64
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
65
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).
66
EMMERICH DE  VATTEL,  THE  LAW OF  NATIONS (Charles G. Fenwick trans., Car-
negie Inst. of Wash. 1916) (1758).
67
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 “odiousâ€� 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
68
For discussions of Vattel’s influence on the founding generation, see DANIEL G.
LANG, FOREIGN POLICY IN THE EARLY REPUBLIC 15–16 (1985); FRANCIS STEPHEN RUDDY,
INTERNATIONAL LAW IN THE ENLIGHTENMENT 281 (1975).
69
St. George Tucker, 
View of the Constitution of the United States in  1 BLACKSTONE’S
COMMENTARIES app. at 140 (St. George Tucker ed., Phila., William Birch Young &
Abraham Small 1803).
70
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.
R
71
Id.  at 408.
72
Id.  at 423.
73
In addition to the above cited pages, see, for example, Tucker, 
supra  note 69,
R
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.
74
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
question.�).
75
According to historian Saul Cornell, Tucker’s 
Commentaries  was “an instant
publishing success� and “became the definitive American edition of Blackstone until
midcentury.â€� CORNELL,  
supra  note 21, at 263.
R
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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
76
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
people�).
77
See  WOOD, supra  note 52, at 599–600.
R
78
See generally 1 ACKERMAN, supra  note 28, at 3–33 (describing the “dualistâ€� Amer-
R
ican Constitution); KRAMER, 
supra  note 28, at 6 (arguing that the founding generation
R
embraced the centrality of “the people� in its political ideology).
79
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 . . . .�).
80
See  Nicholas Aroney,  Formation, Representation and Amendment in Federal Constitu-
tions , 54 AM. J. COMP. L. 277, 308–09 (2006).
81
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).
82
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
THE CONSTITUTION OF THE UNITED STATES WITH SELECTED WRITINGS 402, 408–09
(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.
G.
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.â€�85  Although this allowed
83
2 ELLIOT’S DEBATES,  
supra  note 9, at 362–63 (emphasis added) (reporting the
R
remarks of Alexander Hamilton to the New York ratifying convention on June 28,
1788).
84
See, e.g. , THE FEDERALIST NO. 33 (Alexander Hamilton),  supra  note 34, at 201.
R
85
Edmund Randolph, Debate in the Virginia Convention (June 17, 1788), 
in 10
THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1338, 1347
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for the exercise of incidental powers, Randolph understood that these
powers would be limited to those means that were “
necessary for the
principal thing
.â€�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-
gated 
to the government of the United States.â€�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
RATIFICATION].
86
Id. at 1348 (emphasis added).
87
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.â€� 
See  Herbert J. Storing,  The ‘Other’ Federalist
Papers: A Preliminary Sketch
, 6 POL. SCI. REVIEWER 215, 222 (1976).
88
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,
R
1788).
89
See  Ratification of the Constitution by the State of Rhode Island [hereinafter
Rhode Island Ratification], 
in  2 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE
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
R
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
H.
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
90
Rhode Island Ratification, 
supra  note 89, at 316.
R
91
TUNIS WORTMAN, A TREATISE CONCERNING POLITICAL ENQUIRY, AND THE LIBERTY
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].â€� 
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
government.�92
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-
ments
.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
apprehensions.95
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
92
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.
93
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.
94
Id. ;   Observations , SALEM MERCURY,   supra  note 54.
R
95
2 SAMUEL H. SMITH & THOMAS LLOYD, TRIAL OF SAMUEL CHASE 257 (Da Capo
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.
II.
THE FRAMING AND ORIGINAL UNDERSTANDING OF THE
TENTH AMENDMENT
A.
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.â€�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
96
See infra  Part III.
97
See infra  note 169 and accompanying text.
R
98
See  LEVY, supra  note 30, at 42 (discussing the efforts of some Antifederalists to
R
“sabotage the Bill of Rights�).
99
Randolph,  
supra  note 85, at 1338, 1348 (“Is it not then fairly deducible, that
R
[the federal government] has no power but what is expressly given it?�).
100
See id.
101
Id.  at 1353.
102
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.â€�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 â€œ
a
summary
 of a bill of rights.â€�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.â€�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.â€�107  So too for New Hamp-
103
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.
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104
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-
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posed amendments to the Constitution); 
see also Letters of Centinel No. 2 supra  note 51,
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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
means.�).
105
The Massachusetts Convention Debates (Feb. 1, 1788), 
in  6 THE DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1390, 1395 (John P. Kaminski et
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
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the Massachusetts convention on February 1, 1788).
106
Patrick Henry, Remarks at the Virginia Convention (June 16, 1788), 
in  10 DOC-
UMENTARY HISTORY OF THE RATIFICATION,  
supra   note 85, at 1299, 1331.
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107
See  Massachusetts’ Form of Ratification (Feb. 6, 1788),  in  6 DOCUMENTARY HIS-
TORY OF THE  RATIFICATION,  
supra  note 105, at 1469, 1469.  Massachusetts’ proposed
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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
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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-
tive
 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
assembled.�111
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 delegatedâ€� 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.
108
See  1 ELLIOT’S DEBATES,   supra  note 9, at 325–26.
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109
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.
110
From the Maryland Gazette .    To the People of Maryland ,   supra  note 109.
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111
Reasons of Dissent ,   supra  note 89, at 624.
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112
See  1 ELLIOT’S DEBATES,   supra  note 9, at 327–31, 334–37.
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113
See id.  at 325.
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B.
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.â€�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 powerâ€� 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.â€�  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
114
The Virginia Convention proposed the addition of two interlocking
amendments:
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
Government.
. . . .
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.â€�  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 Committeeâ€� 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
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and accompanying text; 
infra  notes 120–22, 162–76 and accompanying text.
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115
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?�).
116
See  James Madison, Speech in Congress Proposing Constitutional Amendments
(June 8, 1789), 
in  JAMES MADISON: WRITINGS 437, 444 (Jack N. Rakove ed., 1999).
117
See  Randolph,  supra  note 102, at 1485.
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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.â€�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.â€�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
C.
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.
118
Id.  at 1483.
119
Id.   Note that Randolph equates “giving away a rightâ€� with “delegating a
power.â€�  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
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(arguing that “the Founders broadly shared the view that rights and powers were
directly dependentâ€�).  As Madison put it during his speech introducing the Bill of
Rights, the concern was that unenumerated rights might be assumed to have been
“assignedâ€� into the hands of the government. 
See  Madison,  supra  note 116, at 448–49.
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120
James Madison, Remarks at the Virginia Convention (June 24, 1788), 
in  10
DOCUMENTARY HISTORY OF THE RATIFICATION,  
supra  note 85, at 1473, 1501–02.
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121
See infra  note 169 and accompanying text.
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122
See infra  notes 162–69 and accompanying text (discussing Madison’s 1791
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speech against the Bank of the United States).
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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
D.
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.â€�   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,â€� 
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 “expresslyâ€� in the same light
with the gentleman who opposed him
; he thought every power to be
123
See, e.g. , CORNELL, supra  note 21, at 244–45.
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124
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-
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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.
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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 “expresslyâ€� 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-
125
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.â€� 
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.â€�  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.
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126
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
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opposite is true: the language was first suggested by the same member who sought to
add the term “expressly� to the Tenth Amendment.
127
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.â€�  Congressional Proceedings, 
supra  note 125, at 193.  Sherman’s final
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point means that he believed the addition of the term would require the Constitution
to expressly “provide for every possible contingency.â€�  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.
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tion, by exercising powers 
indispensably necessary and proper , but, at the
same time, not
 expressly  granted.â€�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 “expresslyâ€�
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 lightâ€� 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.â€�  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.
E.
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-
128
THE FEDERALIST NO. 44 (James Madison), 
supra  note 34, at 284.
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129
See, e.g. , Randolph,  supra  note 85, at 1348.
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130
See  Madison,   supra  note 116, at 441.
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131
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.
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132
See id.
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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.â€�  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
“clearlyâ€�137 or “expresslyâ€�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.â€�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.â€�140  To
Randolph, the link between a declaration of popular sovereignty and
a government of expressly delegated powers was of critical
importance:
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
133
See  3 ELLIOT’S DEBATES,   supra  note 9, at 657.
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134
See  4   id.  at 243.
135
See  1   id.  at 334.
136
Id.  at 327.
137
See id.  at 327, 334.
138
For proposals by Massachusetts, New Hampshire, Maryland, and Pennsylvania,
see  
supra  notes 107–11 and accompanying text.
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139
4 ELLIOT’S DEBATES,  
supra  note 9, at 148.
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140
Randolph,  
supra  note 102, at 1483 (emphasis added).
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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.â€�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.
141
Edmund Randolph, Remarks at Virginia Convention (June 21, 1788), 
in   10
DOCUMENTARY  HISTORY OF THE  RATIFICATION,  
supra  note 85, at 1440, 1455–56 (foot-
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note omitted).
142
1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
143
The same principle would be expressed in the Tenth Amendment’s sibling,
the Ninth Amendment.
144
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-
R
dent check on the expansion of federal power through judicial “constructive enlarge-
mentâ€�); 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-
145
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-
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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-
ber 12, 1789, 
in  JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA 60, 64
(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.
146
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.
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147
See infra  notes 261–67 and accompanying text.
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148
See  THE FEDERALIST NO. 39 (James Madison),  supra  note 34, at 246.
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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.â€�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.
III.
POST-SUBMISSION COMMENTARY
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-
149
See  2 ELLIOT’S  DEBATES,   supra  note 9, at 362–63 (“In the first formation of
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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 . . . .�).
150
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
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involve a combination of national and state majorities).
151
4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
152
U.S. CONST. amend. X; 
id.  amend IX.
153
See supra  note 143 and accompanying text;  see also infra  notes 162–86 and
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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.
A.
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:
154
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.
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155
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.â€�); 
see also  James Madison, Speech Opposing the Cre-
ation of a National Bank (Feb. 2, 1791), 
in  JAMES MADISON: WRITINGS,  supra  note 116,
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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 . . . .�).
156
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.,
1984).
157
Act of Feb. 25, 1791, ch. 10, 1 Stat. 191.
158
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
constitution
; 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
Amendments:
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
159
Id.  at 98 (final emphasis added).
160
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.
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161
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.â€�  Congressional Proceedings, GREENLEAF’S N.Y.J., Jan. 18, 1794, at
2.
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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
162
Congressional Proceedings, FED. GAZETTE,  
supra   note 11;  see also  4 ELLIOT’S
R
DEBATES,
supra  note 9, at 414 (reporting the statements of James Madison regarding
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the establishment of a national bank on February 2, 1791).
163
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 12thâ€� 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
AKHIL REED AMAR, AMERICA’S CONSTITUTION 315 (2005).
164
Congressional Proceedings, FED. GAZETTE,  
supra  note 11.
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165
Congressional Proceedings, GAZETTE U.S.,  
supra  note 163.
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166
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.
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167
This earlier account can also be found in Elliot’s 
Debates See  4 ELLIOT’S
DEBATES,  
supra  note 9, at 414.  The use of Elliot’s  Debates , however, has fallen out of
R
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
Retrieval
, 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-
MENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Margaret A. Hogan et
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.â€�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,
168
Congressional Proceedings,  GAZETTE U.S.,  
supra   note 163;  see also  Madison,
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supra  note 155, at 489 (“Here he read sundry passages from the debates of Penn-
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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.�).
169
Congressional Proceedings, FED. GAZETTE,  
supra  note 11.
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170
See  Congressional Proceedings, GAZETTE U.S.,   supra  note 163.
R
171
See   Congressional Proceedings, FED. GAZETTE,   supra   note 11  The earlier
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account in the 
Federal Gazette  reveals that the specific arguments Madison referred to
were those limiting Congress to expressly enumerated powers. 
See id.
172
See supra  notes 59–61 and accompanying text.
R
173
See supra  notes 85–86 and accompanying text.
R
174
See Letters of Centinel No 2 ,   supra   note 51, at 147 (“Mr. Wilson tells you, that
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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.â€�).  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,
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at 539–40.
175
Madison,
supra  note 155, at 488–89 (“[T]he [Pennsylvania, Virginia, and
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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.�).
176
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.
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177
Congressional Proceedings, GEN. ADVERTISER,  
supra  note 161.
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178
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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[federal] Government . . . should be considered as belonging to the
states.â€�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
179
National Bank ,   supra  note 178.
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180
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
Union.
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.�).
181
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-
loch
, 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-
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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.  â€œThat 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. Bull 183 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-
tures
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 Peopleâ€� 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).
182
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
prescribed.
United States v. Worrall, 28 F. Cas. 774, 779 (C.C.D. Pa. 1798) (No. 16,766) (opinion
of Chase, J.).
183
3 U.S. (3 Dall.) 386 (1798).
184
See, e.g. , BARNETT, supra  note 28, at 126; CALVIN R. MASSEY, SILENT RIGHTS 49,
R
158–59 (1995); Suzanna Sherry, 
The Founders’ Unwritten Constitution , 54 U. CHI. L. REV.
1127, 1166–73 (1987).
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be exercised by it, and 
all  the powers that  remain  in the State Gov-
ernments are 
indefinite ; except only in the Constitution of
Massachusetts .185
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
185
Calder , 3 U.S. (3 Dall.) at 387.
186
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-
gated powers.â€�); HORTENSIUS [GEORGE HAY], AN ESSAY ON THE LIBERTY OF THE PRESS 6
(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.â€�); Letter from George Washington to Lord B. (1818), 
in  LET-
TERS FROM  WASHINGTON,  ON THE  CONSTITUTION AND  LAWS 78, 87 (A Foreigner
[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.â€�); 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.â€�); 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
R
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
Amendment.
B.
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
187
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.
188
See  Act of June 25, 1798, ch. 58, 1 Stat. at 570–71.
189
See  Act of July 14, ch. 74, 1 Stat. at 596–97.
190
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.
191
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).
192
Id.  at 449.
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its 
Report of the Minority on the Virginia Resolutions  (“Minority Reportâ€�)—
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,â€�195 and that one should
therefore expect broad pronouncements of general power rather
than the “prolixity of a legal code.â€�196  Marshall’s argument in 
McCul-
loch  
also uses the exact same argument as the Minority Report in
regard to the implications of the missing word “expressly.â€�197  It
should come as no surprise, therefore, to learn that the anonymous
193
See  Report of the Minority on the Virginia Resolutions (Jan. 22, 1799),  in  5 THE
FOUNDERS’ CONSTITUTION,  
supra  note 190, at 136.
R
194
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
R
195
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
196
Id.
197
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
198
See, e.g. , RICHARD R. BEEMAN, THE  OLD  DOMINION AND THE  NEW  NATION 196
(1972); 2 BEVERIDGE, 
supra  note 5, at 402; MORTON FRISCH & RICHARD STEVENS, POLITI-
R
CAL  THOUGHT OF  AMERICAN  STATESMEN 75–76 (1973); RALPH  KETCHAM, JAMES
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.
R
199
See  James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800),  in