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07/11/2019

Lash on the Tenth Amendment
Mike Rappaport

Kurt Lash has an interesting post up, based on his earlier law review article, arguing that the 10th Amendment should be understood to protect against inferring federal powers that are not expressly delegated to the federal government.

The language of the 10th Amendment provides that “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.” Many have noted that this stands in contrast to the language in the Articles of Confederation that provided that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled” (emphasis added). Thus, these commentators argue that the Constitution allows for implied powers.

Lash argues, quoting a large number of contemporary commentators, that the 10th Amendment was understood to protect against federal powers that were not expressly delegated. Let’s assume that Lash is correct. Then what?

I am not sure what follows. Does that mean that there are no implied powers? Of course not, because the Constitution expressly provides for the Necessary and Proper Clause, which authorizes implied powers. Lash himself recognizes this in the post.

Thus, there is no doubt that there are implied powers in the Constitution. The key uncertainty is the standard that must be satisfied to imply these powers. And that is determined primarily by the meaning of the Necessary and Proper Clause. Lash recognizes that this is important and argues for a strict interpretation of the Necessary and Proper Clause in the post. And he may be correct about that. But the answer turns primarily on the meaning of the Clause rather than on the meaning of the 10th Amendment.

So if Kurt is right about the absence of “expressly” in the 10th Amendment, that is a helpful aid to our understanding. It would suggest that many people, including Chief Justice Marshall, were wrong about the 10th Amendment. But it would still leave the key question of what the Necessary and Proper Clause means and whether Marshall was also wrong about that.