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Monday, February 11, 2013

The Importance of the Word "Expressly" in Constitutional Interpretation

The tenth amendment to the United States Constitution reads:

"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."

When this amendment was being drafted, the "states' rights" advocates kept putting the word "expressly" in before delegated. Madison kept taking it out. The reason he did so is that he thought the federal government should have the power to do what was not expressly delegated to it, but which was only implied in its expressly delegated powers.

As a result, what passed was an ambiguous compromise: the states' rights people could say the amendment meant what they thought it should, and that "expressly" was implied. The "consolidationists" could interpret it their way, in which it meant the federal government could do anything that aided it in achieving the ends the Constitution explicitly set for it.

Successive Supreme Courts took one view after the other: the Marshall court adopted the Madisonian view, while Taney's court adhered to the states' rights view.

There was no single, original interpretation that we can fall back on today: this document was an ambiguous compromise designed to appease different visions of what the country should become.

3 comments:

  1. Gene, I believe you may have mistaken a bit in your post.

    Prior to ratification of the constitution and bill of rights, the Federalists repeated assurances against the “sweeping clauses” that the Constitution granted only limited and “expressly” delegated powers (it’s all over in the debates). Although the word “expressly” was taken out, the phrase “or to the people” was added which was Thomas Tucker’s primary source of declaration of retained sovereign power, not the term expressly.

    See; Kurt T. Lash ~The Original Meaning of an Omission~ p.1920-1926 on SRRN

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    Replies
    1. In Federalist 44 Madison very expressly rejects "expressly" and says just why, which supports exactly what I say above.

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  2. Interesting! That does indeed make original intent seem a lot more ambiguous than hard-line "tenthers" would like.

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