The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered

Lawyers are famous for fighting over commas. The First Congress fought over an adverb. In August 1789, a congressman from South Carolina stood up and asked the House to add a single word to the amendment that became the Tenth. The House said no. Thirty years later, the Chief Justice of the United States built one of the most important opinions in American history partly on that refusal.

The word was "expressly." To understand why its absence matters, and why the Tenth Amendment still protects something real despite it, we have to read three texts side by side: the Articles of Confederation, the Tenth Amendment, and the opinion in McCulloch v. Maryland. Let us take them passage by passage, the way the men who wrote them would have.

Passage one: Article II of the Articles of Confederation

The first national charter, drafted in 1777 and in force from March 1, 1781, said this in its second article:

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.

What it meant then. Under the Articles, the states were the principals and Congress was their agent. The word "retains" says the states kept everything they had. The word "expressly" says Congress had only what was spelled out in words, with nothing implied. If a power was not written down, Congress did not have it, even if it was a necessary means to carry out a power that was written down.

How it worked. Badly. Congress could requisition money from the states but had no power to tax individuals, so the states often simply did not pay. It could make treaties but had little means to make the states honor them. It could not regulate commerce among the states. It could raise an army only by asking the states for troops. The government that won the Revolution nearly lost the peace. A side-by-side reading of the two charters is in The Articles of Confederation Next to the Constitution, Side by Side.

The lesson the delegates in Philadelphia drew in 1787 was not that the states should be abolished. It was that a national government must have real powers, adequate to its purposes, and the means to carry them out. That required giving up the word "expressly."

Passage two: the Constitution of 1787 and the promise of few and defined powers

The Constitution replaced the Articles with a government of enumerated powers, listed chiefly in Article I, Section 8, followed by a clause giving Congress power to make all laws "necessary and proper for carrying into Execution the foregoing Powers." That last clause was the signal. The new government would have the means as well as the ends.

Federalists promised that this was still a limited government. James Madison put it most memorably in Federalist 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

That promise is unpacked in Few and Defined, the Promise About Federal Power in Madison's Federalist 45.

Anti-Federalists did not trust it. The writer known as Brutus warned in 1787 that the necessary and proper clause, together with the general welfare language, would let the federal government absorb nearly every power the states held, a warning we examine in Brutus No. 1 Predicted the Necessary and Proper Clause Would Swallow the States. Several ratifying conventions recommended an amendment reserving undelegated powers to the states, and some of those proposals carried the old word from the Articles, asking that powers not expressly delegated be reserved.

Passage three: the amendment Madison proposed, and the word he left out

On June 8, 1789, Madison introduced his proposed amendments in the House. Among them was a reservation clause. He did not include "expressly." The final text, ratified with the rest of the Bill of Rights on December 15, 1791, reads:

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.

Read it phrase by phrase.

• "The powers not delegated to the United States by the Constitution." The starting assumption is that the federal government has only delegated powers. Everything else begins outside its reach. This confirms the structure of enumerated powers.
• "nor prohibited by it to the States." The Constitution forbids the states certain powers, such as coining money, making treaties and passing ex post facto laws in Article I, Section 10. Those are not reserved to anyone at the state level.
• "are reserved to the States respectively." Each state keeps its own share. "Respectively" means the reservation runs to each state separately, not to the states as a bloc.
• "or to the people." Some powers are not held by any government at all. The people kept them. That phrase connects the Tenth Amendment to the Ninth's "rights retained by the people," a link we explore in The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter.

Now notice what is missing. Unlike the Articles, the amendment says "not delegated," not "not expressly delegated."

Passage four: Thomas Tudor Tucker's motion, August 1789

When the House debated the amendments in August 1789, Thomas Tudor Tucker of South Carolina moved to insert "expressly" before "delegated." The Anti-Federalist logic was straightforward: if the reservation clause tracked the Articles, the new government would be confined to powers written out in words, and the necessary and proper clause would be neutered.

Madison opposed the motion. As the debates record his argument, he said 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. The motion failed.

What it meant then. The First Congress, the same body that wrote the Bill of Rights, deliberately chose not to restore the Articles' rule. The members understood that a government of enumerated powers necessarily has implied powers as means to its enumerated ends. They rejected confining the federal government to express grants. But they did not say that the federal government's powers were unlimited. They said its powers were those delegated, expressly or by necessary implication, and nothing more.

That distinction is everything. An implied power is still a delegated power. It must be a means to carry out something the Constitution actually grants.

Passage five: John Marshall reads the omission in McCulloch (1819)

In 1816 Congress chartered the Second Bank of the United States. Maryland taxed the bank's Baltimore branch, and the branch's cashier, James McCulloch, refused to pay. The case reached the Supreme Court, which decided it in 1819.

Maryland's lawyers argued that the power to charter a corporation was nowhere in the Constitution, so Congress lacked it. Chief Justice John Marshall answered with the Tenth Amendment's drafting history. He observed that among the enumerated powers one does not find the power to establish a bank or create a corporation, but that there is no phrase in the Constitution which, like the Articles of Confederation, excludes incidental or implied powers and requires that everything granted be expressly and minutely described. He pointed out that even the Tenth Amendment, framed to quiet jealousies about federal power, omits the word "expressly," and he suggested that the men who drew it, having lived through the troubles the word caused under the Articles, probably left it out to avoid those troubles. The question whether a particular power has been delegated, he concluded, must depend on a fair construction of the whole instrument.

Then Marshall added the line every law student learns: "we must never forget that it is a constitution we are expounding." A constitution marks great outlines; it does not contain the detail of a legal code.

What it meant then. Marshall used the omission of "expressly" to defeat the argument that Congress had only express powers. He upheld the bank as a means to carry out the powers to tax, borrow, regulate commerce and support armies. And he held that Maryland could not tax the federal bank, because "the power to tax involves the power to destroy."

What Marshall did not say. He did not say Congress could do anything it deemed good for the country. He wrote that the end must be legitimate and within the scope of the Constitution, and the means appropriate, plainly adapted to that end, and consistent with the letter and spirit of the Constitution. And he warned that if Congress, under the pretext of executing its powers, passed laws for objects not entrusted to the government, the Court would have to say that such an act was not the law of the land. Implied powers have a leash. We explain where it runs in McCulloch v. Maryland Opened a Door, and Marshall Swore It Had Walls and The Necessary and Proper Clause Was Never Meant to Be a Blank Check.

The strongest objection: the Tenth is a truism

Here is the best argument that the Tenth Amendment, without "expressly," does nothing at all. In United States v. Darby (1941), upholding federal wage and hour laws, the Supreme Court said the amendment "states but a truism that all is retained which has not been surrendered." On this view, the Tenth merely restates the structure: if a power was delegated, the states do not have it exclusively; if it was not, they do. The real question is always the scope of the delegated powers, and the Tenth adds nothing to answering it. Once the commerce power expanded, the Tenth simply had less to reserve.

That argument is clever and partly true. Here is why it fails as a reason to ignore the amendment.

1. A truism can still be a rule. The statement that the federal government has only delegated powers is a truism only if everyone takes it seriously. The point of writing it down in 1791 was that people might stop taking it seriously. The amendment is a written instruction to read federal powers as limited, and when courts treat the delegated powers as boundless, they are violating the truism, not applying it.
2. The amendment confirms a structure that courts enforce. The Supreme Court has built a real doctrine on the structural principle the Tenth confirms. In New York v. United States (1992), the Court, in an opinion by Justice Sandra Day O'Connor, struck down the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which forced states either to regulate radioactive waste according to Congress's instructions or to take ownership of it. Congress, the Court held, may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. In Printz v. United States (1997), the Court held that Congress could not order state and local law-enforcement officers to carry out background checks under the Brady Act. In Murphy v. NCAA (2018), it struck down a federal law forbidding states to authorize sports gambling, holding that a command to a state legislature not to legislate is commandeering too.
3. Darby's own era shows the cost of forgetting. The years between the late 1930s and the 1990s saw the Court come close to declaring the states' reserved powers a matter of congressional grace. In Garcia v. San Antonio Metropolitan Transit Authority (1985), it overruled a 1976 decision protecting state governments from certain federal labor rules and told the states to seek protection in the political process. The anti-commandeering cases are the partial recovery from that low point.

What the Tenth Amendment still protects

Put the passages together and the amendment's present work comes into focus.

• States are not federal field offices. Washington may regulate individuals directly within its powers, but it may not conscript state legislatures and officers to do its work. That principle cuts across party lines. States of every political stripe have relied on it to decline to administer federal programs they oppose, and a conservative who wants it for his state when the other party holds Washington must defend it for every state when his own party does.
• Spending cannot become a gun to the head. In NFIB v. Sebelius (2012), the Court held that Congress could not threaten states with the loss of all their existing Medicaid funding to force them to accept the Affordable Care Act's expansion. Conditions on grants are permitted; coercion is not.
• Accountability stays clear. When each level of government does its own work with its own officials, voters know whom to blame. Commandeering lets Washington take credit and leave the states with the bill and the anger.
• The federal government must point to a grant. Without "expressly," the federal government may use implied powers. But it must always be able to say which enumerated power a law carries into execution. That is the leash Marshall described, and the Tenth Amendment is its written reminder.

None of this endorses nullification, the theory that a single state can declare a federal law void within its borders. Madison himself rejected that theory in his old age; the story is in Nullification Failed in 1832, and James Madison Himself Said It Should. The Tenth Amendment works through courts, through Congress's restraint and through the states' refusal to be conscripted, not through secession by statute. Its larger case, that fifty states trying different policies serve liberty better than one national rule, is made in Federalism Lets Fifty States Experiment, and the Constitution Planned It.

The case in brief

1. Article II of the Articles of Confederation reserved every power not "expressly" delegated, and that rule helped leave the first national government too weak to function.
2. In August 1789, the House rejected Thomas Tudor Tucker's motion to put "expressly" into the Tenth Amendment, after Madison argued that a government must have powers by implication.
3. In McCulloch v. Maryland (1819), John Marshall read the omission as permitting implied powers, while insisting those powers serve legitimate, enumerated ends.
4. The Tenth Amendment still protects the states from commandeering, as New York v. United States (1992), Printz (1997) and Murphy (2018) held, and it reminds every official that federal power must rest on a grant.

What you can do: pick one federal program your state administers, find the statute that authorizes it on Congress.gov, and ask your state legislator whether the state is participating by choice or under a federal condition.