Lash on The Tenth Amendment, Popular Sovereignty, and "Expressly" Delegated Power

Kurt T. Lash, Loyola Law School, Los Angeles, has posted a new paper, The Puzzling Persistence of a Missing Word: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power. Here's the abstract:

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power, “was neither more nor less, than [an] attempt to foist into the text the word 'expressly'. Modern courts often cite to McCulloch's “omitted text” analysis of the Tenth Amendment in support of broad interpretations of federal power. In fact, Marshall's point regarding the significance of the missing word “expressly” is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is puzzling therefore to learn that courts and commentators during the early decades of the Constitution regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation insisted that Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing actually reflects the original understanding of the Tenth Amendment. Completely missed by generations of Tenth Amendment scholars, adding the phrase “or to the people” to the Tenth transformed the clause into a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of “expressly delegated powers,” meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, these twin assertions of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.