About That 10th Amendment

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During Congressional debate on what would become the Bill of Rights Rep. Thomas Tucker of S.C. (where else) tried to sqeeze the word "expressly" into what would become the 10th Amendment.

However, "Mr. Madison objected to this [Tucker's] amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia."
(Annals of Congress, Aug. 18, 1789)

Rep. Roger Sherman agreed with Madison, "observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed." (Annals of Congress, Aug. 18, 1789)

Madison and Sherman carried the day.

Justice Joseph Story would write of the defeat of the attempt to add "expressly" to the 10th, "It is plain, therefore, that it could not be the intention of the framers of this amendment to give it effect, as an abridgement of any powers granted under the Constitution, whether they are express or implied, direct of incidental." (Story, Commentaries on the Constitution of the United States)

And the Supremes have held:

o "The 10th Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that the powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified." (U.S. v Sprague)

o "The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it has been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers." (U.S. v Darby)

The 10th -- indeed the entire Bill of Rights -- was a rather canny political move by Madison that allowed him to keep a promise to Virginia's Baptists and at the same time to spike the largest rhetorical gun of the anti-Federalist opponents of the Constitution without changing a word or any meaning of the Constitution as originally written, adopted, and ratified.
 
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