The Tenth Amendment: Nation Over State Preserved

Abstract

The ideological Antifederalists sought to introduce into the Constitution a reserved powers amendment that would deny Congress an implied powers doctrine. Recognizing the implications of reverting to the decrepit arrangement of the Articles of Confederation, Madison refused to limit Congress to the powers “expressly” enumerated in the Constitution. Instead, he secured adoption of a reserved powers clause that confirmed for the states all powers not conveyed to the federal government. Thus, the constitutional structure remained intact, the national government retained both enumerated and implied powers, and the Antifederalist effort to weaken the Federalist Constitution was defeated.

In writing this chapter I have been greatly aided by the valuable insights provided by Charles F. Hobson’s, “The Tenth Amendment and the New Federalism of 1789” in Jon Kukla, (ed.), The Bill of Rights: A Lively Heritage (Richmond, VA: Virginia State Library, 1989), 152–163. Moreover, for further excellent publications relating to this topic, see Walter Berns, “The Meaning of the Tenth Amendment” in Robert A. Goldwin, (ed.), A Nation of States: Essays on the American Federal System (Chicago: Rand McNally, 1961), 126–148; Charles A. Lofgren, “The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention” in Ronald K.L. Collins (ed.), Constitutional Government in America (Durham, NC: Carolina Academic Press, 1980), 331–357; Mark R. Killenbeck, “Pursuing the Great Experiment: Reserved Powers in a Post-Ratification Compound Republic,” Supreme Court Review (1999): 81–140; and Mark R. Killenbeck (ed.), The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues (Lanham, MD: University Press of America, 2002).