“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.”
We might think those words—or words to the same effect—are in the U.S. Constitution. But they are not. They are from Article II of the Articles of Confederation, America’s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in 1787.
After the Constitution was ratified, something like Article II was added to the Constitution as the Tenth Amendment. Unfortunately it is like Article II in the same sense that a whale is like a fish—superficially.
The Tenth Amendment says: “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.”
The most significant difference is that Article II qualifies the word delegated with expressly. The Tenth Amendment does not. The difference was no oversight. When a member of Congress proposed insertion of that word, James Madison objected, arguing that any constitution must have implied powers. (How many of today’s constitutionalists realize that Madison was an early proponent of the implied-powers doctrine?) This suggests that while the Articles of Confederation was a document of explicitly enumerated congressional powers, the Constitution, contrary to widespread belief, was not.
Professor Calvin H. Johnson of the University of Texas Law School published a paper in 2006 that sheds light on this subject. “The Dubious Enumerated Power Doctrine” (pdf) presents formidable evidence that the framers had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution.
“In carrying over the Articles’ wording and structure, they removed old Article II’s limitation that Congress would have only powers ‘expressly delegated’ to it,” Johnson writes. “When challenged about the removal, the Framers explained that the expressly delegated limitation had proved ‘destructive to the Union’. . . . Proponents of the Constitution defended the deletion of ‘expressly’ through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.”