The Original Meaning of an Omission
27. Jul, 2009 
36 Comments
Editor’s Note: In an effort to continually expand the Tenth Amendment Center as a forum for education and research, we are pleased to announce the launch of our “publications” section. Here, we’ll feature research papers and more from renowned Constitutional scholars. This first offering, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power,” by Kurt T. Lash, is one of the finest examples of Tenth Amendment scholarship available.
It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).
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 strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.
It is also almost certainly wrong.
James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.
Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.
According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.
Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power – the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.
CLICK HERE TO DOWNLOAD THE FULL PAPER
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Kurt T. Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA. Since joining the Loyola Law School faculty in 1993, Professor Lash has published numerous articles on constitutional law, theory and history. His work appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Northwestern Law Review, and Texas Law Review. Most recently, Oxford University Press has published Professor Lash’s book, The Lost History of the Ninth Amendment. In 2007, Professor Lash served as Chair of the Association of American Law Schools Section on Constitutional Law.
Copyright, Kurt T. Lash, Notre Dame Law Review
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If I were smart enough to accurately calculate how many times this Supreme court has purposely, and of course always, in their own favor, omitted something, this could potentially make me a very well known mathematical genius.
“In the Fourteenth Amendment the provision regarding the taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property without due process of law.” – Fallbrook Irrigation Dist. v. Bradley
It’s the nature of government – to expand their own power. Hard for me to imagine that those most closely connected with it would ever want admit of limits…
John Marshall, like almost all prominent lawyers, appears to have been in love with his own intellect, and displayed this disgusting trait through the means of an asserted superiority; this takes the form of unecessary verbosity. The Constitution, so far as I can figure out, was written in such a manner as to be understood by anyone of average mean comprehension; lawyers, considering themselves to be intellectually superior, insist upon fixing what ain’t broke, thus destroying it out of some egocentric BS compulsion to tamper, tamper, tamper. Marshall was a putz.
State Level Solutions:
Work to get your state legislature to pass a Sovereignty Bill with teeth.
See example below:
“A Politician’s Ear”
Project: Define a Sovereign State formed by a Sovereign People.
This is what our state politicians should be hearing from the people:
What is the meaning of Louisiana State Sovereignty?
The Sovereign people of Louisiana, having created the Sovereign State of Louisiana, call on our state legislators to enact the following legislation:
- Form an Alliance of Sovereignty between all 50 states. &
- Work within that Alliance to peaceably bind the Federal Government with the chains of the Constitution and the Rule of Law.
- All Federal Monies (corporation taxes, license fees, income tax, etc.) payable to the Federal Government from the state of Louisiana shall be collected by the State of Louisiana for distribution to the Federal Government.
- All Federal Agencies and employees doing business in Louisiana shall be licensed and regulated by the State of Louisiana. This includes the Federal Courts located in Louisiana.
- All Federal Law Enforcement personnel shall be licensed and regulated by the State of Louisiana and must register with the Sheriffs Office of the Parish they are operating in. The Sheriffs office must approve all Federal enforcement actions prior to enforcement.
- All Federal employees will have mandatory classes on Constitutional Law and the Oath of Office in order to obtain their license.
- Louisiana State Supreme Court has jurisdiction over all Federal Courts including the U.S. Supreme Court as it pertains to the State of Louisiana.
- All Louisiana Senate and House Representatives in the US Congress shall return to Louisiana and report to the Louisiana State Legislature for further instructions.
The Federal Government is trying to suggest that the Sovereignty Resolutions passed by the states means Succession.
There is no Succession here. We seek to enforce the contract made between each state and the Federal Government (The Constitution).
Each State Supreme Court has jurisdiction over the contract that formed the Federal Government. That contract is The Constitution.
So, what happens now? Supreme court shot it down, can anything else be done to force the Supreme court to the correct decision?
amen, brother- i’m not in louisiana but I might move there if you get this through
Dave – important question. The Supremes generally shoot down anything that limits the power of the federal government. So it’s going to take courage from people like yourself and from state legislators – to stand up and start using our rights, with or without permission from federal judges.
How? Well, that might take another full article, but it can effectively start with state-level nullification of unconstitutional federal laws.
Because of the debates that occurred during the time of the Constitutional Convention and the specific States’ rights issues that concerned them in those debates, because of the Founders who specifically wanted to “limit the Federal level” the conclusion must be the Founders were more interested in power at the level where we, the people, reside.
The power, now, resides just opposite where the Founders intended it to be.
If all levels would abide by their Oath of Office and abide by the Boundaries in the Constitution which “bind them” – What a happy day that would be for We, the people.
For God & Country
Ruth Ann Wilson
Amen to Prof. Lash!
This is why I ALWAYS quote my beloved Madison & Hamilton & Jay (authors of The Federalist Papers) to explain what The Constitution means.
It is why hell will freeze over before I quote a federal judge as an authority on The Constitution. I expect there have been some good federal judges; but as a group, they have been a disaster to our country.
Note to Dave Batson: The Pope did something which Napoleon Bonaparte didn’t like. Napoleon’s response was: “How many divisions does the Pope have?”
Look at The Federalist No. 78 (7th para) & No. 81 (9th para), both by Hamilton. [The second cite also shows that federal judges may be impeached & removed for usurpations. It is NOT TRUE that they can be impeached & removed only for serious crimes!]
So, I ask you: How many divisions does the U.S. Supreme court have? PH
“The federalo government did not create the states; the states created the federal government.”
“we are a nation that has a government, not the other way around.”
“Government is not the solution to our problems, Government is the problem.” PRESIDENT RONALD REAGAN
Democrats and Republicans, president, judges, and congress alike-long ago rejected the idea that the Constitution possesses a fixed meaning limiting the U.S. government power.
In case you have forgotten, this idea was not a minor aspect of the Constitution; it was the document’s very purpose.
What Happens When the Government Breaks its Own Laws. At all levels
We we appreciate your comments. info@ wastewatchersinc.org
When is the last time you read the U.S Constitution
The Rule o f Law, and the Letter of the Law. Not the Rule of Men
Michael you may have began our greatest tool of all with this site. Let us do a membership drive and donation drive for the “express” purpose of hiring a Constitutional Lawyer to bring our concernes before the Supreme Court in a class action suit for We the Members. How many citizens would it take and how much money?
The only reason that the USSC, the Oval Office and Congress are getting away with perverting the Constitution is the following. The people aren’t taking the initiative to learn the Constitution and its history. So the blissfully ignorant people DESERVE to become slaves of the Constitution-ignoring federal government.
The only hope any of us really has in this lifetime to see a rebirth of liberty and limited government is economic collapse that forces Congress to relinquish its usurped powers, State secession, or both. If the dollar collapses as Ron Paul and many others are predicting, the States will have good incentive to secede so as not to be inveigled in ruin. Lovers of liberty should not be talking about reforming Washington, which is hopeless and a waste of time. They should be talking up secession and the revitalization of the State militia in preparation to defend their right to be “free States.”
B. Johnson I understand your fustration as most on this site do but a defeatist attitude helps no one. I have always had a problem with the word “deserves”. It is my expierence that few in this life actually get what they deserve. What we get is a reaction to our actions. If we put our hand in fire then we get burned type thing. I have heard men much wiser than I say how inefficient the learning process is. It seems each new generation must make the same mistakes as those before. The best we can do is reinvent freedom for every person who will pay attention. If this can be done in a calm and intelligent manner then the enemies of freedom will do most of the convincing through their own actions.
@ Tom Rankin
*Sigh*
Just last month I was bored and designed a flag for a Sovereign Nation of Louisiana…
Not that I advocate secession… I just advocate state’s rights; however, I highly doubt the fed will willingly surrender its illegal power – so to this end I do support secession.
Always thought it would be humorous for the state to tell the fed that we (Louisiana) would no longer be accepting federal money and that the fed could no longer collect taxes from within the state. …One can dream I suppose.
Nothing irritates me more than paying $8k to the fed in taxes, while LA takes maybe $1.5k. If anything, it should be the other way around. Then in turn the fed uses the money that it seizes from the citizenry of a state to blackmail it into capitulating to what it wants. Prime example of this in Louisiana and many other states is drinking age. If the state refused to lower it, the fed simply refused to give the state money for highway projects – money taxed from the state’s citizens.
Tyranny…
@ Nicholas
I do not advocate secession. I advocate enforcement of a contract.
The very first item in a Bill of Sovereignty is:
- Form an Alliance of Sovereignty between all 50 states.
Work within that Alliance to peaceably bind the Federal Government with the chains of the Constitution and the Rule of Law.
50 states, all on the same page. We take our country back.
PS I would like too see that new Louisiana flag.
As a Jewess in the US, I ask WHAT is Hussein Obama HIDING? Doesn’t matter! TOO LATE NOW! There are now some constitutional/legislative “theologians” who say that even IF the DemocRAT votes COULD be found to impeach him, that Obama is legally UNIMPEACHABLE, if in fact he is not a natural-born American. They say that, because then he would never have been eligible to hold the office in the first place, and so is NOT the President, and thus CANNOT be impeached! The articles simply would NOT APPLY to him, any more than they would to you or me. Meanwhile, he occupies the White House, sitting around smoking cigars, drinking Crown Royal, and flitting about on Air Force One. If true, HOW would he be removed from the White House? Perhaps via an ordinary EVICTION process? Don’t let the media bury this story! -Wendy Weinbaum
Wendy, I am quite certain that if obama is in fact ineligible to hold office by reason of not being a natural born Citizen, he is properly subject to impeachment, conviction and removal from office, if he refuses to resign.
The “theologians” whom you cite should get back to counting the number of angels who can dance on the head of a pin! At that task, they can spread no misinformation which does harm. PH
I find it hard to believe that people put so much energy into Obama’s citizenship. While he should be ineligible if it were proven that he was foreign-born, I can see many more constitutional violations that should result in impeachment or removal from office – and they happen every day in broad daylight. They need no research or fact-finding, or any of it.
So, back to the article at hand – what it teaches us is that the federal government is one of limited powers, not the one of nearly unlimited powers that exists today. Therefore, a large portion of what the feds do every single day – is in violation of the constitution.
Looking to the federal government to fix itself is a foolish strategy. That’s why I’m happy to see so many people recognizing the effectiveness of looking inward – to local communities and state governments – to resist federal overreach.
Mr. Rankin, you are correct. It is not “secession”, it is “Sovereignty”. God has already ruled against “Breaking the Constitution”.
When the 17th Amendment was added to the Constitution, a very delicate “check and balance” was destroyed. The Founders wanted the Senate to reflex the “State Level”. The Popular election of the Senate has produced “Princes in high places”. We, the people, have no voice with this chamber because the “balance of power” has been lost. Power was always to reside with WE, THE PEOPLE. In this case, We sent LOCAL representatives to the State Legislature, they were responsive to WE, THE PEOPLE. It was relatively easy to address them. They move among us. They have to stand LOCAL elections to go to the State Legislature. We have their attention and we have State Constitutions which if they get out of bounds and violate their Oath of Office, they won’t go back. So the Founders wisely stated that the Senate would be elected from the State Legislature. It protected the “Sovereignty of the States and their Constitutions”.
Comment- The Founders where men who “loved their people”. They had Preachers who Preached. I have in my possession a book – “They Preached Liberty”. These valiant Preachers feared God, not government. Preachers now fear the “501C-3″.
We can fix it. God sees the prayers, tears, sighs, and cries of the Veterans and Patriots. No one can deny that God built this Beloved Country for His Glory and Our Good. It has come to pass.
For God & Country
Ruth Ann Wilson
Mr. Bolden, I certainly agree with you. These Forum give people an opportunity to think and by the Grace of God, DO.
The LOCAL level of government was to be the strength of power. I agree that “State Sovereignty” must be regained. I also see that the LOCAL level must once again be loosed from the “State Restraints”. Local School Boards, Local Property Assessors, Local County Commissions, Local Sheriffs, this level of government is where WE, THE PEOPLE, live, move and own property. Grants and “Revenue Sharing” have done much damage to the Local Level. By the “Grant System” we have surrendered the “Local Level.” Keep the money collected locally for local business and exist on a Local budget. It wasn’t until 1965 that this “clever tool” came to us for our own destruction under the Johnson Administration.
Declarations of Sovereignty must come to Local, State, and Federal governments. “Draw the line” and that Line is the Constitution & Bill of Rights prior to 1913, Declaration of Independence and the Ten Commandments of Almighty God.
For God & Country
Ruth Ann Wilson
States can nullify federal laws and it has been done numerous times since the Constitution was ratified. Secondly, the Supreme Court usurped power in regard to the Supremacy clause. I believe the original intent limits their supremacy only to federal issues, and they do not apply to State issues. In essence, any power left to States are not subject to the supremacy clause. By usurping power and stating they themselves have supremacy over everything and everyone contradicts the Framers intent.
I agree with those stating each State must pass a 10th amendment sovereignty bill that is meaningful. The states are not subserviant to the federal government, nor are they born from the federal government. The people and the States created the federal government and the federal government is subserviant to the States.
The States can call a Constitution Convention and propose amendments to the Constitution. It is unlikely that Congress will propose amendments such as term limits for representatives and senators; restate the meaning of the commerce clause, the general welfare clause; repeal the 17th amendment so that Senators are appointed by State legislatures, etc.
We need to protect our Liberty.
Scott.
I have a question. I hope I am not out of place to ask this in this forum, so please inform me if I am.
Here is the question: In 1963, when the Supreme Court hearkened to the Atheist O’Hare and ruled prayer and Bible reading out of the Public Schools, the decline started. How would a Supreme Court decision be reversed? Would a “reverse decision” strike it from the record, never to be brought back up????
It seems to me that our decline in this Beloved Country started at this point. How do you reverse a Supreme Court Decision?????
Thanks
For God & Country
Ruth Ann Wilson
Dear Ruth Ann,
Your question is so important that I am doing something which I fear some will consider really tacky! If you will go to my blog (click on my name in blue) & read the article “Religious Freedom”, you will see exactly how judges on the US Supreme Court went about banning religion from the public square AND you will see how lawless their actions were.
Once people understand how transparently lawless the judges’ actions have been, how completely indefensible & contrary to the Constitution, it becomes very easy to say, “I refuse to be bound by such lawless usurpations”.
I would love to be a principal of a public high school – I’d have prayers everyday. And I would post the Ten Commandments! Maybe even give quizzes on them! And if those meddlesome athiests from the ACLU attacked me, why, I’d call a press conference and challenge them to a public debate! I’m telling you: They can not defend their positions intellectually!
By the way, I live in the “Bible Belt”: At every public event I attend (tea parties, political meetings, etc.), we have prayers, usually led by a pastor. These meetings are all on “public property”. Most people bow their heads & participate. Nobody objects! If anyone did, we’d laugh at them.
The people on our side have been asleep & we are lazy. We need to wake up. We need to learn the Constitution! It’s not difficult. Then we need to take on the left, show how unconstitutional their positions are, and make fools of them. You don’t need to be a lawyer to do this. I saw a car salesman make a fool of liberal TV reporter who objected to his giving an AK-47 to those who bought a truck from him! That was priceless!
God bless you, friend. PH
Michael Boldin wrote:
I find it hard to believe that people put so much energy into Obama’s citizenship. While he should be ineligible if it were proven that he was foreign-born, I can see many more constitutional violations that should result in impeachment or removal from office – and they happen every day in broad daylight. They need no research or fact-finding, or any of it.
First of all, you’re disparaging people who are mainly on your side, much in the same way that the critics of the tenth amendment movement disparage those of us (you included) who support the movement in spite of it currently representing ‘no teeth’ resolutions. Why? Second, as a “constitutional constructionist” of sorts yourself, I find it hard to believe that you, Michael, think it a waste of time and energy, the pursuit of truth related to Obama’s (and anyone else’s, by extension) eligibility to serve as POTUS. Third, as I’ve said before, here and elsewhere, people tend to ‘come along’ at their own pace. Not everyone sees the same constitutional violations that you and I and a few others see. There’s nothing wrong with pointing those violations out, but, as I said, to disparage people who are mainly on your side because you see something vitally important to them as a waste of time and energy doesn’t make much sense to me.
I want to make a comment on this “Birth Certificate Issue”. The real problem was that this “question” should have been settled at the State Electoral College meetings to certify the “election in December”. The Electoral College is not an “antiquated appendage of the Constitution”, the question of citizenship was in their “scope” to settle. The Electoral College at the State level should have called the “question.” They should have refused to “certify the election” until all “questions” were answered. The Electoral College is the “check and balance” of violations of the Constitution against the people.
People can’t get much farther than the fact the “question” was never settled by the Electoral College that should have settled the “question”. The State level Electoral College could have and should have resolved all “Constitutional questions” at that time before they “certified the election.” Many States have severe penalties for “dereliction of duties” as pertains to the Electoral College.
The Foundations are “being destroyed and what shall the Righteous do?” My answer is “Build them back.”
For God & Country
Ruth Ann Wilson
@ BK Campbell
Re: Membership drive…donation drive…“express” purpose of hiring a Constitutional Lawyer…class action suit for We the Members
Has the above been addressed? If so, what’s the status? Finally, would it be viewed as a secession issue?
A regular Joe asking irrelevant questions(?)
PATRICK HENRY LIVES COMMENT ON JULY 27 IS STARTING TO MAKE ALOT OF SENSE WITH ME.
I would rather my freedoms be reliant upon drugs, then dependent upon an economic collapse.
Set yourself free, take LSD. lol
I agree with the premises that the 10th amendment is intended to limit federal powers to the enumerated powers. However, the civil war gave “states’ rights” a bad name that lasts until the present. The justification of slavery under the heading of states’ rights is an association deep in the American psyche. Then add to this corruption of business and government at the state and local levels and the rise of populism and progressivism, and we had a formula for steady growth of federal power. The states’ right doctrine is constitutionally correct, and limits federal government. I think the pendulum should swing back in that direction in light of egregious invasions against our liberties; yet, what arguments can I advance against the expansion of federal power occasioned by these movements?
Thanks.
Gun Control is the last refuge of the coward. As a Jewess in the US, may I remind everyone that America wasn't won with a registered gun? And that criminals are stopped by FIREARMS, not by talk? That is why all REAL Americans put our 2nd Amendment FIRST!! -Wendy Weinbaum
Great comment, Wendy – looking forward to seeing more feedback from you around here in the near future!