Notre Dame Law Review

Volume 83 | Issue 5 Article 1

7-1-2008 The Original Meaning of an Omission: The eT nth Amendment, Popular Sovereignty, and Expressly Delegated Power Kurt T. Lash

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Recommended Citation Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and Expressly Delegated Power, 83 Notre Dame L. Rev. 1889 (2008). Available at: http://scholarship.law.nd.edu/ndlr/vol83/iss5/1

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THE ORIGINAL MEANING OF AN OMISSION: THE TENTH AMENDMENT, POPULAR SOVEREIGNTY, AND "EXPRESSLY" DELEGATED POWER

Kurt T. Lash*

INTRODUCTION ...... 1890 I. THE HISTORICAL BACKGROUND OF THE TENTH AM ENDMENT ...... 1897 A . Methodology ...... 1897 B. The Traditional Story ...... 1899 C. Article II of the Articles of Confederation...... 1902 D. The FederalistResponse ...... 1905 E. The State Conventions ...... 1906 F Sovereignty and the Construction of Delegated Power ...... 1908 G. The Other Meaning of Expressly Delegated Powers ...... 1911 H. A Preexistent Principle...... 1913 II. THE FRAMING AND ORIGINAL UNDERSTANDING OF THE TENTH AM ENDMENT ...... 1915 A. The State Convention Declarations and Proposed A m endments ...... 1915 B. The Virginia Ratifying Convention ...... 1918

© 2008 Kurt T. Lash. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles). J.D., Yale Law School, 1992. The author thanks Larry Solum, Gary Rowe, Clark Lombardi, Nelson Lund, and the participants at the University of Washington Law School Faculty Workshop Series for their comments and suggestions on an early version of this Article. Special thanks to Chris Fritz for his help and advice on the vexing question of sovereignty in the early republic.

1889 1890 NOTRE DAME LAW REVIEW [VOL. 83:5

C. Summary of the State Conventions ...... 1919 D. Drafting the Tenth Amendment ...... 1920 E. PopularSovereignty and the Tenth Amendment ...... 1922 III. POST-SUBMISSION COMMENTARY ...... 1926 A. The Bank Controversy ...... 1927 B. The Alien and Sedition Acts Controversy ...... 1935 C. The Nationalism of ...... 1940 1. Popular Sovereignty and McCulloch ...... 1941 2. After M arshall ...... 1946 D. 's Middle Ground ...... 1951 CONCLUSION ...... 1953

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 S