The original meaning of an omission: The tenth amendment, popular sovereignty, and "expressly" delegated power

Notre Dame Law Review

Volumn 83, Issue 5, 2008, Pages 1889-1956

  Lash, Kurt T ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 45449108146     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (407)

1. 17 U.S. (4 Wheat.) 316 (1819). There are a number of excellent monographs devoted to McCulloch. Two of the most recent include Mark R. KILLENBECK, M'CULLOCH v. MARYLAND (2006), and RICHARD E. ELLIS, AGGRESSIVE NATIONALISM (2007). Probably the best (and most influential) general treatment of the Marshall Court is G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE (1988).
2. According to Maryland counsel Walter Jones, "[The Constitution] is a compact between the States, and all powers which are not expressly relinquished by it, are reserved to the States." McCulloch, 17 U.S. (4 Wheat.) at 363.
3. Id. at 406.
4. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1908, at 653 (photo, reprint 1994) (Melville M. Bigelow ed., Boston, Little, Brown & Co. 5th ed. 1891).
5. See, e.g., 4 ALBERT J. BEVERIDOE, THE LIFE OF JOHN MARSHALL 282 (1919) ("If [Marshall's] fame rested solely on this one effort, it would be secure.").
6. See, e.g., 3 WILLIAM WINSLOW CROSSKEY & WILLIAM JEFFREY JR., POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 36 (1980);
7. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE Wicked STATES 120 (2005) [hereinafter JOHNSON, RIGHTEOUS ANGER];
8. Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 CONST. COMMENT. 25, 44 (2005);
9. Robert J. Kaczorowski, Popular Constitutionalism Versus Justice in Plaincloth.es: Reflections from History, 73 FORDHAM L. REV. 1415, 1423-24 (2005);
10. William E. Leuchtenburg, The Tenth Amendment over Two Centuries: More Than a Truism, in THE TENTH AMENDMENT AND STATE SOVEREIGNTY 41, 45-46 (Mark E. Killenbeck ed., 2002);
11. John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663, 1748 n.323 (2004);
12. Paul E. McGreal, Unconstitutional Politics, 76 NCVOTRE DAME L. REV. 519, 567 (2001);
13. Ralph A. Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment, 36 SAN DIEGO L. REV. 671, 722-23 (1999);
14. see also Printz v. United States, 521 U.S. 898, 939 n.1 (1997) (Stevens, J., dissenting) (citing the omission of "expressly" and Marshall's argument in McCulloch);
15. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 853 (1995) (Thomas, J., dissenting) (same);
16. Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. Rev. 103, 125 n.51 (2000) (using the assumed significance of the omitted term "expressly" for the Tenth Amendment to make analogous claims for the significance of omitting any reference to "standing armies" in the Second Amendment).
17. See U.S. Term Limits, 514 U.S. at 853 (Thomas, J., dissenting);
18. see also Mark R. Killenbeck, Pursuing the Great Experiment: Reserved Powers in a Post-Ratification, Compound Republic, 1999 Sup. Ct. Rev. 81, 111-13 ("For example, Justice O'Connor's opinions evidence an extraordinary fixation on a Tenth Amendment within which the only apparent value is its affirmation of the primacy of state government.");
19. David M. Sprick, Ex Abundanti Cautela (Out of an Abundance of Caution): A Historical Analysis of the Tenth Amendment and the Continuing Dilemma over "Federal" Power, 27 CAP. U. L. REV. 529, 537-38 (1999) (noting Justice Story's rejection of the characterization that the Tenth Amendment acted as an abridgment of any constitutionally granted powers).
20. See infra note 176 and accompanying text.
21. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 362 (Jonathan Elliot ed., Phila., J.B. Lippincott Co. 2d ed. 1891) [hereinafter ELLIOT'S DEBATES] (reporting the remarks of Alexander Hamilton to the New York ratifying convention on June 28, 1788). Hamilton would take a far broader view of federal power following the adoption of the Constitution.
22. See infra notes 158-59 and accompanying text.
23. 4 ELLIOT'S DEBATES, supra note 9, at 253-63 (reporting a speech by Charles Pinckney before the South Carolina House of Representatives on January 16, 1788).
24. Congressional Proceedings, FED. GAZETTE (Phila., Pa.), Feb. 12, 1791, at 2 [hereinafter Congressional Proceedings, FED. GAZETTE].
25. 4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
26. JOHN PAGE, ADDRESS TO THE FREEHOLDERS OF GLOUCESTER COUNTY 28 (Richmond, John Dixon 1799) ("I say, considering these things, how could it be possible to suppose, that these two amendments [the Ninth and Tenth] taken together, were not sufficient to justify every citizen in saying, 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, as fully and completely; as if the word expressly had been inserted?").
27. Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798).
28. See infra notes 66-68 and accompanying text.
29. See infra note 260 and accompanying text.
30. See infra note 244 and accompanying text.
31. See infra note 279 and accompanying text;
32. see also Griswold v. Connecticut, 381 U.S. 479, 490 n.5 (1965) (Goldberg, J., concurring) ("The Tenth Amendment similarly made clear that the States and the people retained all those powers not expressly delegated to the Federal Government.").
33. See infra notes 162-69 and accompanying text.
34. U.S. CONST. amend. X (emphasis added).
35. See SAUL CORNELL, THE OTHER FOUNDERS 187-94 (1999) (defining antifederalism at various moments throughout the evolving tradition of dissenting public discourse);
36. JOHNSON, RIGHTEOUS ANGER, supra note 6, at 175.
37. See U.S. CONST. art. I,§ 8, cl. 18.
38. 22 U.S. (9 Wheat.) 1 (1824).
39. See Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. REV. 611, 620 (1999).
40. Although all contemporary originalists seek to identify the original understanding of the ratifiers, the effort is particularly important for popular sovereignty-based originalism, a normative theory of constitutional interpretation which maintains that we ought to follow the meaning of the text as it was understood by thepeople who added it to the Constitution. See KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION 110-59 (1999);
41. see also Kurt T. Lash, Originalism, Popular Sovereignty and Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1444-48 (2007) (arguing that because the Constitution and its amendments are the product of an "independent and supermajoritarian process by which certain legal norms can be entrenched, or immunized, from the ordinary political process," the Court ought to invalidate "[a]ny legislative action that diverges from this higher law").
42. 5 ANNALS OF CONG 776 (1796) (statement of Rep. Madison
43. See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1804-05 (2007).
44. Once associated with the political goals of the right, the originalist enterprise has come to be embraced by a wide spectrum of constitutional theorists. Some of the most influential liberal constitutional works of the 1980s and 1990s employed sophisticated originalist analysis. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 131-229 (1991);
45. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 32-95 (1998);
46. AKHIL REED AMAR, THE BILL OF RIGHTS (1998). Recent originalist work by libertarian, liberal, and federalist scholars have all shed important light on the original understanding of the Constitution.
47. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 89-117 (2003);
48. LARRY D. KRAMER, THE PEOPLE THEMSELVES 9-34 (2004);
49. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007).
50. In a series of recent articles, I have presented a significant body of previously unknown or unrecognized evidence regarding the original understanding and traditional application of the Ninth and Tenth Amendments. See Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 TEX. L. REV. 597 (2005) [hereinafter Lash, Lost Jurisprudence];
51. Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. REV. 331 (2004) [hereinafter Lash, Original Meaning];
52. Kurt T. Lash, On Federalism, Freedom, and the Founders' View of Retained Rights: A Reply to Randy Barnett, 60 STAN. L. REV. 969 (2008);
53. Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 895 (2008) [hereinafter Lash, Textual-Historical Theory]. For a counterreading of some of this evidence,
54. see Randy E. Barnett, Kurt Lash's Majoritarian Difficulty: A Response to A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 937 (2008);
55. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1, 4-5, 21-76 (2006).
56. There are numerous excellent (if incomplete) accounts of the history behind the adoption of die Tenth Amendment. One of the best is Charles A. Lofgren, The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention, in CONSTITUTIONAL GOVERNMENT IN AMERICA 331 (Ronald K.L. Collins ed., 1980). Others include THOMAS B. MCAFFEE ET AL., POWERS RESERVED FOR THE PEOPLE AND THE STATES 39-44 (2006);
57. Jack N. Rakove, American Federalism: Was There an Original Understanding?, in THE TENTH AMENDMENT AND STATE SOVEREIGNTY, supra note 6, at 107. For a general account of the adoption of the Bill of Rights, see LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS (1999).
58. See ARTICLES OF CONFEDERATION art. II (U.S. 1781) ("Each state retains... every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."). Article II did not completely hamstring the government. Congress managed, for example, to find the authority to charter a national bank under the Articles of Confederation, despite the lack of a text expressly granting such authority. See KILLENBECK, supra note 1, at 11.
59. See, e.g., Essays of Brutus No. 1, N.Y.J., Oct. 18, 1787, at 2,
60. reprinted in 2 THE COMPLETE ANTI- FEDERALIST 363, 367 (Herbert J. Storing & Murray Dry eds., 1981) (arguing that the proposed central government would exercise its commerce power "to annihilate all the state governments, and reduce this country to one single government");
61. Essays of an Old Whig (VI), INDEP. GAZETTEER (Phila., Pa.), Nov. 24, 1787, at 2,
62. reprinted in 3 THE COMPLETE ANTI- FEDERALIST, supra, at 38, 43 (arguing that granting Congress the power to tax would "annihilate the individual states").
63. See infra notes 85-86 and accompanying text (discussing the concerns of Edmund Randolph).
64. Not only was a bill unnecessary given the doctrine of enumerated powers, but moreover adding a list of enumerated rights, Federalists argued, might raise a dangerous presumption of otherwise unlimited federal power. See THE FEDERALIST NO. 84, at 519 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.... For why declare that things shall not be done which there is no power to do?");
65. see also THE COMPLETE BILL OF RIGHTS 647-48 (Neil H. Cogan ed., 1997) (reporting the remarks of Mr. Wilson suggesting that a bill of rights was "unnecessary" and "dangerous").
66. THE FEDERALIST No. 44 (James Madison), supra note 34, at 284;
67. see also STANLEY ELKINS & ERIC McKitrick, THE AGE OF FEDERALISM 231 (1993) (discussing the role of Federalist No. 44 in the later controversy over the Bank of the United States).
68. THE FEDERALIST No. 21 (Alexander Hamilton), supra note 34, at 139.
69. See LEVY, supra note 30, at 30-31.
70. See id. at 32-35.
71. 1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
72. Id. (emphasis added). On August 21, there was a second unsuccessful attempt to restore the term "expressly": The ninth proposition Mr. GERRY proposed to amend by inserting the word "expressly," so as to read "the powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people." As he thought this an amendment of great importance, he requested the yeas and nays might be taken. He was supported in this by one-fifth of the members present; whereupon they were taken, and were as follows: YEAS - Messrs. Burke, Coles, Floyd, Gerry, Grout, Hathorn, Jackson, Livermore, Page, Parker, Partridge, Van Rensselaer, Smith, (of South Carolina,) Stone, Sumter, Thatcher, and Tucker-17. NAYS - Messrs. /vmes, Benson, uouainot, Brown, Caawaiaaer, oarrou, Clymer, Fitzsimons, Foster, Gale, Gilman, Goodhue, Hartley, Heister, Lawrence, Lee, Madison, Moore, Muhlenburg, Schureman, Scott, Sedgwick, Seney, Sherman, Sylvester, Sinnickson, Smith, (of Maryland,) Sturges, Trumbull, Vining, Wadsworth, and Wynkoop-32.
73. Id. at 767-68.
74. The additional attempt was made on August 21. See id.
75. An easy, if cynical, explanation would be that the advocates of the Constitution engaged in dissembling. The historical record, however, reveals how these seemingly conflicting statements can be reconciled. See infra Part II.D. Even if one accepts the dissembling explanation, however, the ratifiers were entitled to treat Federalist explanations of the Constitution as made in good faith. For an example of the "dissembling" reading of the statements made by the Federalists during the ratification debates, see JOHNSON, RIGHTEOUS ANGER, supra note 6, at 174-75.
76. THE DECLARATION OF INDEPENDENCE para. 31 (U.S. 1776).
77. See ARTICLES OF CONFEDERATION art. II (U.S. 1781). Although the Articles were drafted and adopted by the Second Continental Congress in 1777, they were not formally ratified until 1781.
78. 5 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 547 (Worthington Chauncey Ford ed., 1906).
79. Letter from Thomas Burke, Delegate, to Richard Caswell, Governor (Apr. 29, 1777), in 6 LETTERS OF DELEGATES TO CONGRESS 671, 672 (Paul H. Smith et al. eds., 1980).
80. ARTICLES OF CONFEDERATION art. II (U.S. 1781).
81. See JAMES WILSON, CONSIDERATIONS ON THE BANK OF NORTH AMERICA (1785), reprinted in 1 COLLECTED WORKS OF JAMES WILSON 60, 65 (Kermit L. Hall & Mark David Hall eds., Liberty Fund 2007). For a defense of Congress' power to create the Bank of North America, despite the restrictions of the Articles of Confederation, see id. at 60-79.
82. According to Hamilton in Federalist No. 21: The next most palpable defect of the existing Confederation is the total want of a SANCTION to its laws. The United States as now composed have no power to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional means. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction in the face of that part of the second article by which it is declared "that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled." THE FEDERALIST No. 21 (Alexander Hamilton), supra note 34, at 138-39. Hamilton was, of course, exaggerating in order to support his argument against keeping the Articles. Under the Articles, Congress had managed to establish the Bank of North America despite the lack of any express authorization. Although men like James Madison believed the Bank to be beyond the delegated authority of the Articles, others like James Wilson argued that the limitation to expressly delegated powers nevertheless left room for the establishment of the Bank. See WILSON, supra note 48, at 60-79.
83. See THE FEDERALIST No. 33 (Alexander Hamilton), supra note 34, at 203 (referring to the Necessary and Proper Clause as "the sweeping clause").
84. Letters of Centinel No. 2, MD. J. (Bait., Md.), Nov. 2, 1787, at 1, reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 32, at 143, 146-47.
85. According to the Antifederalist writer Brutus: How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite. and may, for ought I know, be exercised in a such manner as entirely to abolish the state legislatures. Essays of Brutus No. I, supra note 32, at 367;
86. see also CORNELL, supra note 21, at 29-30 (listing consolidation as one of the main issues recurring in Antifederalist writings based on the concern that "consolidated government undermines both republicanism and liberty");
87. DANIEL WIRLS & STEPHEN WIRLS, THE INVENTION OF THE UNITED STATES SENATE 136 (2004) (naming "consolidation" of the sovereign states as one of the key Antifederalist concerns during the ratification debates);
88. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 524-32 (W.W. Norton ed., 1972) (discussing Antifederalist fears of consolidation).
89. 4 ELLIOT'S DEBATES, supra note 9, at 259-60 (reporting the speech of Charles Pinckney before the South Carolina House of Representatives on January 16, 1788). Pinckney's speech in its entirety was reprinted in South Carolina and Pennsylvania newspapers.
90. See Legislative Proceedings, CITY GAZETTE (Charleston, S.C.), Jan. 25, 1788, at 2;
91. Legislative Proceedings, Pa. PACKET (Phila., Pa.), Feb. 21, 1788, at 2.
92. A Citizen of New Haven [Roger Sherman], Observations on the New Federal Constitution, and the Alterations That Have Been Proposed as Amendments (pts. 1 & 2), SALEM MERCURY, June 30, 1789, at 1, SALEM MERCURY, July 7, 1789, at 1 [hereinafter Observations, SALEM MERCURY].
93. Editorial, SALEM MERCURY, Jan. 15, 1788, at 1.
94. A Correspondent, N.J.J. (Elizabethtown, N.J.), Dec. 19, 1787, at 2.
95. Alexander White, To the Citizens of Virginia, WINCHESTER Va. GAZETTE, Feb. 29, 1788, reprinted in 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 438, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988).
96. For a discussion of the Federalists' use of "expressly delegated powers" in support of the proposed Constitution, see Wood, supra note 52, at 539-43. As Wood illustrates, the concept of expressly delegated power was inextricably linked to the emerging concept of popular sovereignty. See id.
97. 4 ELLIOT'S DEBATES, supra note 9, at 140-41 (reporting the remarks of Archibald Maclaine before the North Carolina convention on July 28, 1788).
98. Id. at 142 (reporting the statement of Samuel Johnston before the North Carolina convention on July 22, 1788).
99. Id. at 148-49. In spite of the Federalists' best efforts, a majority of the convention remained unconvinced and voted against the proposed Constitution 184 to 84.
100. See id. at 250. North Carolina ultimately ratified only after Congress drafted and circulated for ratification a proposed Bill of Rights.
101. See Chronology, 1786-1790, in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, at xl-xlii (John P. Kaminski et al. eds., 1981).
102. 2 ELLIOT'S DEBATES, supra note 9, at 362 (reporting the remarks of Alexander Hamilton to the New York ratifying convention on June 28, 1788).
103. Id. at 362-63 (emphasis added).
104. 4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
105. Contemporary debates regarding the proper conception of state sovereignty play a role in the Court's Eleventh Amendment jurisprudence and in the so-called "commandeering" cases limiting the power of the federal government to force states to enact or enforce federal policy. See generally Printz v. United States, 521 U.S. 898 (1997) (holding unconstitutional the Brady Act's interim provision requiring local law enforcement to conduct background checks);
106. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (giving various opinions considering the nature of state sovereignty at the time of the Founding);
107. New York v. United States, 505 U.S. 144 (1992) (holding unconstitutional the "take-tide" provision of the Low-Level Radioactive Waste Policy Amendments which required states to dispose of their waste or take tide and incur damages arising from it).
108. EMMERICH DE VATTEL, THE LAW OF NATIONS (Charles G. Fenwick trans., Carnegie Inst. of Wash. 1916) (1758).
109. See id. bk. I, ch. 2, § 16 (commenting on the duty of self-preservation);
110. see also id. bk. II, §§ 305, 308 (describing the need to narrowly construe "odious" delegations of sovereign power).
111. For discussions of Vattel's influence on the founding generation, see DANIEL G. LANG, FOREIGN POLICY IN THE EARLY REPUBLIC 15-16 (1985);
112. FRANCIS STEPHEN RUDDY, INTERNATIONAL LAW IN THE ENLIGHTENMENT 281 (1975).
113. St. George Tucker, View of the Constitution of the United States, in 1 BLACKSTONE'S COMMENTARIES app. at 140 (St. George Tucker ed., Phila., William Birch Young & Abraham Small 1803).
114. See St. George Tucker, Of the Unwritten, or Common Law, of England, in 1 BLACKSTONE'S COMMENTARIES, supra note 69, app. at 378, 407.
115. Id. at 408.
116. Id. at 423.
117. In addition to the above cited pages, see, for example, Tucker, supra note 69, app. at 151 n.* (linking the work of Vattel with the Tenth Amendment);
118. see also id. at 187 (citing Vattel in support of retained state sovereignty). There are many other examples throughout the work.
119. See id. at 154 ("[T]he powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.").
120. According to historian Saul Cornell, Tucker's Commentaries was "an instant publishing success" and "became the definitive American edition of Blackstone until midcentury." CORNELL, supra note 21, at 263.
121. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1431-32 (1987).
122. See generally EDMUND S. MORGAN, INVENTING THE PEOPLE 15, 17-77 (1988) (describing how "the divine right of Kings [gave] way to the sovereignty of the people").
123. See Wood, supra note 52, at 599-600.
124. See generally 1 ACKERMAN, supra note 28, at 3-33 (describing the "dualist" American Constitution);
125. KRAMER, supra note 28, at 6 (arguing that the founding generation embraced the centrality of "the people" in its political ideology).
126. See THE DECLARATION OF INDEPENDENCE para. 31 (U.S. 1776) ("[T]hese united Colonies are, and of Right ought to be Free and Independent States....").
127. See Nicholas Aroney, Formation, Representation and Amendment in Federal Constitutions, 54 Am. J. COMP. L. 277, 308-09 (2006).
128. See, e.g., Earl M. Maltz, Majority, Concurrence, and Dissent: Prigg v. Pennsylvania and the Structure of Supreme Court Decisionmaking, 31 RUTGERS L.J. 345, 358 (2000).
129. See St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia (1796), reprinted in St. GEORGE TUCKER, VIEW OF THE CONSTITUTION OF THE UNITED STATES WITH SELECTED WRITINGS 402, 408-09 (Clyde N. Wilson ed., 1999).
130. 2 ELLIOT'S DEBATES, supra note 9, at 362-63 (emphasis added) (reporting the remarks of Alexander Hamilton to the New York ratifying convention on June 28, 1788).
131. See, e.g., THE FEDERALIST No. 33 (Alexander Hamilton), supra note 34, at 201.
132. Edmund Randolph, Debate in the Virginia Convention (June 17, 1788), in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1338, 1347 (John P. Kaminski et al. eds., 1993) [hereinafter 10 DOCUMENTARY HISTORY OF THE RATIFICATION].
133. Id. at 1348 (emphasis added).
134. A Citizen of New Haven [Roger Sherman], Observations on the New Federal Constitution, NEW HAVEN GAZETTE, Dec. 25, 1788, at 1, reprinted in ESSAYS ON THE CONSTITUTION OF THE UNITED STATES 237, 238 (Paul Leicester Ford ed., N.Y., Burt Franklin 1970) (1892) (emphasis added). According to Herbert Storing, this was a "rather typical description of the Constitution."
135. See Herbert J. Storing, The 'Other' Federalist Papers: A Preliminary Sketch, 6 POL. SCI. REVIEWER 215, 222 (1976).
136. Amendments Proposed by the New York Convention (July 26, 1788), in CREATING THE BILL OF RIGHTS 21, 21-22 (Helen E. Veit et al. eds., 1991);
137. see also 1 ELLIOT'S DEBATES, supra note 9, at 327-31 (reporting the ratification of New York on July 26, 1788).
138. See Ratification of the Constitution by the State of Rhode Island [hereinafter Rhode Island Ratification], in 2 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 310, 316 (Wash., D.C., Dep't of State 1894);
139. see also 1 ELLIOT'S DEBATES, supra note 9, at 334 (reporting the ratification of Rhode Island on May 29, 1790);
140. The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, Pa. PACKET (Phila., Pa.), Dec. 18, 1787, at 1 [hereinafter Reasons of Dissent], reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 617, 624 (Merrill Jensen et al. eds., 1976) ("That the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress assembled.").
141. Rhode Island Ratification, supra note 89, at 316.
142. TUNIS WORTMAN, A TREATISE CONCERNING POLITICAL ENQUIRY, AND THE LIBERTY OF THE PRESS 212 (photo. reprint 2003) (1800). Wortman goes on to cite the First, Ninth, and Tenth Amendments as "relating] to the immediate subject of discussion [the power of the federal government to enact libel laws]." Id. at 220. He also rejects the idea that particular restrictions on power can be construed to imply otherwise affirmative powers and cites the eleventh and twelfth articles of amendment as declaratory provisions that did not alter previous grants of power. See id. at 223-26.
143. Donaldson v. Harvey, 3 H. & McH. 12, 19 (Md. 1790). The opinion is by Judge Jeremiah Townley Chase, not to be confused with Judge Samuel Chase who served on the same Maryland court. Judge Chase had voted against the proposed Constitution at the Maryland convention due to concerns about the impact on states' rights.
144. See CHARLES W. SMITH, JR., ROGER B. TANEY 7 (1936). Although Chase's antifederalism no doubt influenced his reading of die Constitution, it nevertheless echoed assurances made by Federalists during the ratification debates.
145. A Citizen of New Haven [Roger Sherman], Observations on the New Federal Constitution, and the Alterations That Have Been Proposed as Amendments (pts. 1 & 2), N.Y. PACKET, Mar. 20, 1789, at 3, N.Y. PACKET, Mar. 24, 1789, at 2.
146. Id.; Observations, SALEM MERCURY, supra note 54.
147. 2 SAMUEL H. SMITH & THOMAS LLOYD, TRIAL OF SAMUEL CHASE 257 (Da Capo Press 1970) (1805).
148. See infra Part III.
149. See infra note 169 and accompanying text.
150. See LEVY, supra note 30, at 42 (discussing the efforts of some Antifederalists to "sabotage the Bill of Rights").
151. Randolph, supra note 85, at 1338, 1348 ("Is it not then fairly deducible, that [the federal government] has no power but what is expressly given it?").
152. See id.
153. Id. at 1353.
154. See id. at 1354;
155. see also Edmund Randolph, Remarks at the Virginia Convention (June 24, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1473, 1483 (supporting the adoption of a provision declaring the sovereignty of the people, thus securing the principle that "[a]11 rights are therein declared to be completely vested in the people, unless expressly given away").
156. In the end, eight states submitted proposed amendments, all of which included provisions declaring the retained sovereignty of the people and limiting the construction of delegated federal power. See THE COMPLETE BILL OF RIGHTS, supra note 34, at 674-75.
157. See The Virginia Convention Debates (June 27, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1550, 1553-56 (listing Virginia's proposed amendments to the Constitution);
158. see also Letters of Centinel No. 2, supra note51, at 147 ("Mr. Wilson tells you, that every right and power not specifically granted to Congress is considered as withheld. How does this appear? Is this principle established by the proper authority? Has the Convention made such a stipulation? By no means.").
159. The Massachusetts Convention Debates (Feb. 1, 1788), in 6 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1390, 1395 (John P. Kaminski et al. eds., 2000) [hereinafter 6 DOCUMENTARY HISTORY OF THE R ATIFICATION] (emphasis added) (response of Mr. Adams to Mr. Bowdoin of Dorchester);
160. see also 2 ELLIOT'S DEBATES, supra note 9vv, at 130-31 (reporting the statement of Samuel Adams before the Massachusetts convention on February 1, 1788).
161. Patrick Henry, Remarks at the Virginia Convention (June 16, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1299, 1331.
162. See Massachusetts' Form of Ratification (Feb. 6, 1788), in 6 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 105, at 1469, 1469. Massachusetts' proposed amendments were widely published in newspapers throughout the states.
163. See, e.g., Legislative Proceedings, CUMBERLAND GAZETTE (Portland, Me.), Feb. 7, 1788, at 1;
164. Legislative Proceedings, MASS. GAZETTE (Boston, Mass.), Feb. 5, 1788, at 1;
165. see also The Massachusetts Convention Debates, supra note 105, at 1395 ("Your Excellency's first proposition is, 'that it be explicitly declared that all powers not expressly delegated to Congress, are reserved to the several states to be by them exercised.' This appears in my mind to be a summary of a bill of rights....").
166. See 1 ELLIOT'S DEBATES, supra note 9, at 325-26.
167. See 2 id. at 550. Maryland's proposed amendments also were widely published.
168. See, e.g., From the Maryland Gazette. To the People of Maryland, PA. PACKET (Phila., Pa.), May 8, 1788, at 2.
169. From the Maryland Gazette. To the People of Maryland, supra note 109.
170. Reasons of Dissent, supra note 89, at 624.
171. See 1 ELLIOT'S DEBATES, supra note 9, at 327-31, 334-37.
172. See id. at 325.
173. The Virginia Convention proposed the addition of two interlocking amendments: That each State in the Union shall respectively retain every power, jurisdiction and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever, to extend the powers of Congress, but that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution. The Virginia Convention Debates, supra note 104, at 1553-56. A separate draft of Virginia's proposed amendments does include the term "expressly." See Draft Structural Amendments to the Constitution (June 27, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1547, 1548. The "Wythe Committee" draft, reproduced above, does not and this seems more in keeping with the remarks made both during die Virginia debates and later by James Madison.
174. See supra notes 86-87 and accompanying text; infra notes 120-22, 162-76 and accompanying text.
175. See Randolph, supra note 102, at 1485 ("When we see the defects of [the old Article II], are we to repeat it? Are those Gentlemen zealous friends to the Union, who profess to be so here, and yet insist on a repetition of measures which have been found destructive to it?").
176. See James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789), in JAMES MADISON: WRITINGS 437, 444 (Jack N. Rakove ed., 1999).
177. See Randolph, supra note 102, at 1485.
178. Id. at 1483.
179. Id. Note that Randolph equates "giving away a right" with "delegating a power." The common understanding at the time of the Founding was that rights began where powers left off, and vice versa. Abandoning a right by definition meant assigning a power. See generally Lash, Original Meaning, supra note 29, at 374 n.203 (arguing that "the Founders broadly shared the view that rights and powers were directly dependent"). As Madison put it during his speech introducing the Bill of Rights, the concern was that unenumerated rights might be assumed to have been "assigned" into the hands of the government. See Madison, supra note 116, at 448-49.
180. James Madison, Remarks at the Virginia Convention (June 24, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1473, 1501-02.
181. See infra note 169 and accompanying text.
182. See infra notes 162-69 and accompanying text (discussing Madison's 1791 speech against the Bank of the United States).
183. See, e.g., CORNELL, supra note 21, at 244-45.
184. Some Antifederalists, of course, went further and insisted that the Constitution included no such limits-but these arguments were meant to derail ratification and force a second convention. See Address by Denatus, Va. INDEP. CHRON., June 11, 1788, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note 32, at 260, 263. The requisite votes for ratification were attained due to the successful argument of the Federalists that no such unlimited power had been granted. In order that this promise not be forgotten, the conventions submitted their declared understanding that the Federalists were telling the truth, or insisted on amendments declaring the same. Even if the Federalists had in fact dissembled in order to gain ratification, the reasonable understanding of the ratifiers, as Madison later explained, controlled the original understanding of the document. See supra note 26 and accompanying text.
185. 1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834) (emphases added). There is a discrepancy here among different reporters. The Annals of Congress reports Daniel Carroll of Maryland making the motion to add "or to the people."
186. See id. The Gazette of the United States, on the other hand, reports that Elbridge Gerry made the motion and that Carroll opposed it on the grounds that it "tended to create a distinction between the people and their legislatures." Congressional Proceedings, GAZETTE U.S. (New York, N.Y.), Aug. 22, 1789, at 149, reprinted in CREATING THE BILL OF RIGHTS, supra note 88, at 192, 193.
187. Calvin Johnson assumes that the addition of the popular sovereignty language to the Tenth Amendment must have come from Federalists-Johnson in fact goes so far as to claim that the language amounted to a "slap in the face" to the Antifederalists since they believed in states' rights and not the rights of the people. See JOHNSON, RIGHTEOUS ANGER, supra note 6, at 175. The record, of course, expressly shows the opposite is true: the language was first suggested by the same member who sought to add the term "expressly" to the Tenth Amendment.
188. This reading seems to be supported by the report of the debate in the Gazette of the United States in which Roger Sherman of Connecticut supports Madison's objection on the ground that "all corporations are supposed to possess all the powers incidental to their corporate capacity: It is not in human wisdom to provide for every possible contingency." Congressional Proceedings, supra note 125, at 193. Sherman's final point means that he believed the addition of the term would require the Constitution to expressly "provide for every possible contingency." Once again, Tucker did not share the same reading of "expressly" for he believed it allowed the government sufficient flexibility to use those implied means necessarily incident to the express delegation of power. See id.
189. THE FEDERALIST No. 44 (James Madison), supra note 34, at 284.
190. See, e.g., Randolph, supra note 85, at 1348.
191. See Madison, supra note 116, at 441.
192. See Congressional Proceedings, DAILY ADVERTISER (New York, N.Y.), Aug. 15, 1789, at 2,
193. reprinted in CREATING THE BILL OF RIGHTS, supra note 88, at 128, 128.
194. See id.
195. See 3 ELLIOT'S DEBATES, supra note 9, at 657.
196. See 4 id. at 243.
197. See 1 id. at 334.
198. id. at 327.
199. See id. at 327, 334.
200. For proposals by Massachusetts, New Hampshire, Maryland, and Pennsylvania, see supra notes 107-11 and accompanying text.
201. 4 ELLIOT'S DEBATES, supra note 9, at 148.
202. Randolph, supra note 102, at 1483 (emphasis added).
203. Edmund Randolph, Remarks at Virginia Convention (June 21, 1788), in 10 DOCUMENTARY HISTORY OF THE RATIFICATION, supra note 85, at 1440, 1455-56 (footnote omitted).
204. 1 ANNALS OF CONG. 761 (Joseph Gales ed., 1834).
205. The same principle would be expressed in the Tenth Amendment's sibling, the Ninth Amendment.
206. Those few scholars who have focused on the addition of the "or to the people" provision have in fact moved in the precisely opposite direction of that envisioned by Tucker, and attempted to read the clause in tandem with the Ninth Amendment as guarding individual natural rights. See, e.g., David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 317 n.13 (1992);
207. Norman Redlich, Are There "Certain Rights... Retained by the People"?, 37 N.Y.U.L. REV. 787, 806-07 (1962). For a critique of this view see Lash, Original Meaning, supra note 29, at 360 n.422 (suggesting that the Ninth Amendment is best read as an independent check on the expansion of federal power through judicial "constructive enlargement");
208. Thomas B. McAffee, The Federal System as a Bill of Rights: Original Understandings, Modern Misreadings, 43 VILL. L. REV. 17, 19-27 (1998) (taking the view that "the purpose of the Ninth Amendment is to preserve the federal structure against a unique threat posed by enumeration of significant limits on federal power").
209. See Kurt T. Lash, The Inescapable Federalism of the Ninth Amendment, 93 IOWA L. REV. 801, 820 n.63 (2008);
210. see also, e.g., 1 ELLIOT'S DEBATES, supra note 9, at 327 (containing New York's proposed declarations and notice of ratification stating that "every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments" (emphasis added)). Antifederalists in Virginia attempted to make hay out of the fact that the addition of "or to the people" might imply the creation of a unified national people, thus obliterating the independent existence of the states.
211. See Entry of December 12, 1789, in JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA 60, 64 (Richmond, Thomas W. White 1828). The exaggerated concern was part of an effort to discredit the proposed Bill of Rights in order to fuel the drive for a second national convention wherein Antifederalists could restructure the Philadelphia document.
212. See Lash, supra, 840-41.
213. See Printz v. United States, 521 U.S. 898, 919 (1997);
214. New York v. United States, 505 U.S. 144, 155 (1992);
215. Nat'l League of Cities v. Usery, 426 U.S. 833, 842 (1976);
216. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935);
217. Hammer v. Dagenhart, 247 U.S. 251, 295 (1918);
218. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819);
219. 2 STORY, supra note 4, § 1907, at 652.
220. See infra notes 261-67 and accompanying text.
221. See THE FEDERALIST No. 39 (James Madison), supra note 34, at 246.
222. See 2 ELLIOT'S DEBATES, supra note 9, at 362-63 ("In the first formation of government, by the association of individuals, every power of the community is delegated, because the government is to extend to every possible object; nothing is reserved but the unalienable rights of mankind: but, when a number of these societies unite for certain purposes, the rule is different, and from the plainest reason-they have already delegated their sovereignty and their powers to their several governments; and these cannot be recalled....").
223. At least until such time that a combination of both the national and state people amend the Constitution. See U.S. CONST, art. V; THE FEDERALIST No. 39 (James Madison), supra note 34, at 246 (discussing how the procedures for amendment involve a combination of national and state majorities).
224. 4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).
225. U.S. CONST, amend. X;
226. id. amend IX.
227. See supra note 143 and accompanying text;
228. see also infra notes 162-86 and accompanying text (discussing the joint citation of the Ninth and Tenth Amendments as establishing the principle of expressly delegated power).
229. For background on the debate over the First Bank of the United States, see ELKINS & MCKITRICK, supra note, 35, at 223-44;
230. KILLENBECK, supra note 1, at 9-30.
231. See Letter from Edmund Randolph, U.S. Attorney Gen., to George Washington, President of the U.S. (Feb. 12, 1791), in H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL 3, 8 (1999) ("Hence the rule contended for by the enemies of the bill is defective every way. It would be still more so with respect to those (if any such there be) who construe the words, 'necessary and proper,' so as to embrace every expedient power.");
232. see also James Madison, Speech Opposing the Creation of a National Bank (Feb. 2, 1791), in JAMES MADISON: WRITINGS, supra note 116, at 480, 486 ("If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation....").
233. See Thomas Jefferson, Opinion on the Constitutionality of a National Bank (Feb. 15, 1791), in THOMAS JEFFERSON: WRITINGS 416, 416-21 (Merrill D. Peterson ed., 1984).
234. Act of Feb. 25, 1791, ch. 10, 1 Stat. 191.
235. Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 97, 102 (Harold C. Syrett ed., 1965).
236. Id. at 98 (final emphasis added).
237. This seems to contradict the Ninth Amendment which declares that the restrictions on federal power enumerated in the Constitution are not the only restrictions on federal power. See Lash, Textual- Historical Theory, supra note 29, at 921.
238. Congressional Proceedings, GEN. ADVERTISER (Phila., Pa.), Feb. 5, 1791, at 3 [hereinafter Congressional Proceedings, GEN. ADVERTISER]. Three years later, Giles left no doubt that the Tenth Amendment embraced this specific principle. In a discussion regarding the power of the government to provide relief for destitute aliens: "Mr. Giles enlarged on the unconstitutionality of the power proposed to be exercised by the legislature. The scope of his argument turned on the force of an amendment to the constitution, which precludes Congress from the exercise of powers not expressly delegated." Congressional Proceedings, GREENLEAF'S N.Y.J., Jan. 18, 1794, at 2.
239. Congressional Proceedings, FED. GAZETTE, supra note 11;
240. see also 4 ELLIOT'S DEBATES, supra note 9, at 414 (reporting the statements of James Madison regarding the establishment of a national bank on February 2, 1791).
241. Congressional Proceedings, GAZETTE U.S. (New York, N.Y.), Feb. 23, 1791, at 757 [hereinafter Congressional Proceedings, GAZETTE U.S.]. In the bracketed text, Madison referred to the "11th and 12th" Amendments. His reference reflects the early convention of referring to provisions in the Bill of Rights according to their placement on an original list of twelve proposed amendments. What we know as the Ninth and Tenth Amendments were eleventh and twelfth on that original list.
242. See AKHIL REED AMAR, AMERICA'S CONSTITUTION 315 (2005).
243. Congressional Proceedings, FED. GAZETTE, supra note 11.
244. Congressional Proceedings, GAZETTE U.S., supra note 163.
245. See James Madison, Speech Opposing the Bank Bill (Feb. 2, 1791), in 13 THE PAPERS OF JAMES MADISON 373 (Charles F. Hobson et al. eds., 1981);
246. Madison, supra note 155, at 480.
247. This earlier account can also be found in Elliot's Debates. See 4 ELLIOT'S DEBATES, supra note 9, at 414.
248. The use of Elliot's Debates, however, has fallen out of favor among legal historians due to Elliot's somewhat notorious states' rights advocacy, as noted in H. Jefferson Powell, The Principles of '98: An Essay in Historical Retrieval, 80 VA. L. REV. 689, 689 (1994), and the gradual emergence of more complete collections of founding materials. For an example of the latter,
249. see THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Margaret A. Hogan et al. eds., 1976-2008). The Documentary History collection, however, does not at this time include materials on the bank debate.
250. Congressional Proceedings, GAZETTE U.S., supra note 163;
251. see also Madison, supra note 155, at 489 ("Here he read sundry passages from the debates of Pennsylvania, Virginia, and North-Carolina conventions, shewing the grounds on which the constitution had been vindicated by its principle advocates, against a dangerous latitude of its powers, charged on it by its opponents.").
252. Congressional Proceedings, FED. GAZETTE, supra note 11.
253. See Congressional Proceedings, GAZETTE U.S., supra note 163.
254. See Congressional Proceedings, FED. GAZETTE, supra note 11. The earlier account in the Federal Gazette reveals that the specific arguments Madison referred to were those limiting Congress to expressly enumerated powers. See id.
255. See supra notes 59-61 and accompanying text.
256. See supra notes 85-86 and accompanying text.
257. See Letters of Centinel No 2, supra note 51, at 147 ("Mr. Wilson tells you, that every right and power not specifically granted to Congress is considered as withheld. How does this appear? Is this principle established by the proper authority? Has the Convention made such a stipulation? By no means."). For a discussion of Wilson's argument and the concept of "expressly delegated" powers, see WOOD, supra note 52, at 539-40.
258. Madison, supra note 155, at 488-89 ("[T]he [Pennsylvania, Virginia, and North Carolina] state conventions all turned on the same fundamental principle [that the powers not given were retained], and on the principle that the terms necessary and proper gave no additional powers to those enumerated.").
259. See id. at 489. For readers unfamiliar with developments in Ninth Amendment historical scholarship, it might seem odd that Madison paired the Tenth with the Ninth Amendment. Until recently, scholars have tended to view the Amendments as having very different purposes, with the Ninth guarding rights and the Tenth guarding powers. As I have discussed elsewhere, however, it appears that the two Amendments were viewed as working in conjunction to preserve the people's retained right to local self-government. See supra note 29.
260. Congressional Proceedings, GEN. ADVERTISER, supra note 161.
261. National Bank, COLUMBIAN CENTINEL (Boston, Mass.), Mar. 9, 1791, at 201;
262. see also The Observer No. V (pt. 1), FED. GAZETTE (Phila., Pa.), Apr. 1, 1791, at 2 ("[W]hile [the Constitution] provided for the strength and common defense of the whole, it left every part in possession of the rights not expressly delegated or resigned....").
263. National Bank, supra note 178.
264. Similar statements were made by Theodore Sedgwick who argued: The amendment proposed by Congress to the constitution had been mentioned to prove that agreeable to the sense of the federal legislature the general government had no authority to set on foot a bank: he conceived it did not go so far; the establishment of an institution that was intended to have a general operation, could only rest with the representatives of the Union. If it was dubious whether the power contested could not be clearly deduced from the constitution, it should not, he said, be exercised: but it appeared to him clearly delegated by that instrument. Congressional Proceedings, FED. GAZETTE (Phila., Pa.), Feb. 16, 1791, at 2. Some advocates of the Bank, of course, shared Alexander Hamilton's newly announced view of federal power. See, e.g., Congressional Proceedings, FED. GAZETTE (Phila., Pa.), Feb. 15, 1791, at 2 ("The more important powers are specially granted, but the choice from the known and usual means of carrying the power into effect is left to the decision of the legislature.").
265. See An American, For the American Daily Advertiser, DUNLAP'S AM. DAILY ADVERTISER (Phila., Pa.), Feb. 16, 1791, at 2 (noting that "state governments and the people retained all powers not expressly granted by the Constitution" and praising Madison's effort against the Bank). Madison's argument against the bank had a long life. The Richmond Enquirer reprinted the speech in its entirety when the charter was up for renewal in 1810.
266. See Letter to the Editor, ENQUIRER (Richmond, Va.), Jan. 4, 1810, at 4. Following the Supreme Court's decision upholding the Second Bank of the United States in McCulloch, St. George Tucker planned to add a note to his revised edition of Blackstone's Commentaries acknowledging the decision, but directing his readers to Madison's speech.
267. See St. George Tucker, Notes for Revised Version of 1 Tucker's Blackstone's Commentaries, in 1 BLACKSTONE'S COMMENTARIES, supra note 69, app. at 287 (handwritten notes on facing pages of Tucker's personal copy of Blackstone, located at the Earl Gregg Swem Library at the College of William and Mary). The following was to be added as note * to his discussion of the Necessary and Proper Clause: See also, the late President Madison's Speech in Congress in February 1791 against the Bill for establishing a Bank, published in the Richmond Enquirer, vol: 6: no:73. January 4, 1810. But the question on the right of Congress to establish a Bank, with branches in the several states is put at rest, by the Decision of the Supreme Court of the United States, unanimously, in the case of McCulloch vs the State of Maryland March 1819. "That the Act to incorporate the Bank of the U.S. is a law made in pursuance of the Constitution, and is a part of the supreme law of the land." and also, "That the Law passed by the Legislature of Maryland, imposing a Tax on the Bank of the U.S. is unconstitutional and void." Id.;
268. see also Hampden, Letter to the Editor, Rights of "the States and of the People" No. 3, RICHMOND ENQUIRER, June 18, 1819, at 2, reprinted in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 125, 133 (Gerald Gunther ed., 1969) (repeating Clinton's argument that incidental powers must be subordinate to an enumerated end);
269. Hampden, Letter to the Editor, Rights of "the States and of the People" No. 2, RICHMOND ENQUIRER, June 15, 1819, at 3, reprinted in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND, supra, at 116, 122-23 (referring to Madison's "celebrated" speech against the first bank law).
270. In addition to the case discussed in the text, Justice Samuel Chase also delivered an opinion while on circuit in which he declared: In this country, every man sustains a two-fold political capacity; one in relation to the state, and another in relation to the United States. In relation to the state, he is subject to various municipal regulations, founded upon the State constitution and policy, which do not affect him in his relation to the United States: For, the constitution of the Union, is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power, that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed. United States v. Worrall, 28 F. Cas. 774, 779 (C.C.D. Pa. 1798) (No. 16, 766) (opinion of Chase, J.).
271. 3 U.S. (3 Dall.) 386 (1798).
272. See, e.g., BARNETT, supra note 28, at 126;
273. CALVIN R. MASSEY, SILENT RIGHTS 49, 158-59 (1995);
274. Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1166-73 (1987).
275. Colder, 3 U.S. (3 Dall.) at 387.
276. In addition to those examples cited in this and the next subpart, see Ex parte Tate, 39 Ala. 254, 255 (1864) (George W. Gayle for petitioner) ("[T]he general government is the mere creature and agent of the States, and possesses only such powers as are expressly delegated to it, or such as are necessary to carry into effect the delegated powers.");
277. HORTENSIUS [GEORGE HAY], AN ESSAY ON THE LIBERTY OF THE PRESS 6 (photo. reprint 1970) (1799) ("That the individuals selected from the mass of the people, to administer the government, possess no powers, general or special, but those which are either expressly delegated, or are necessary to carry a power expressly delegated into effect.");
278. Letter from George Washington to Lord B. (1818), in LETTERS FROM WASHINGTON, ON THE CONSTITUTION AND LAWS 78, 87 (A Foreigner [George Watterston] ed., Wash., D.C., Jacob Gideon 1818) ("You will easily discover, and it must be always understood, that the powers not expressly delegated, are reserved to the states and to the people. All constructive or assumed powers are considered as dangerous to the liberties of the citizen, and fatal to the rights and the union of the states.");
279. Congressional Proceedings, NAT'L INTELLIGENCER (Wash., D.C.), Nov. 27, 1807, at 1 ("Whatever powers and authorities are not expressly delegated by the constitution to the United States, or necessarily arising under it, shall be reserved to the states themselves or to the people.");
280. Congressional Proceedings, N.Y. COM. ADVERTISER, Jan. 24, 1805, at 2. As Senator Hayne put it during the Tariff Debates of the 1820s: Gentlemen surely forget that the supreme power is not in the government of the United States. They do not remember that the several states are free and independent sovereignties, and that all power not expressly granted to the federal government is reserved to the people of those sovereignties. When I say expressly delegated, I wish to be understood that no power can be exercised by Congress which is not expressly granted, or which is not clearly incident to such a grant. 4 ELLIOT'S DEBATES, supra note 9, at 476 (reporting the remarks of Robert Hayne in April 1824). Hayne, of course, was on the historically perceived losing end of the famous Hayne-Webster debates. Whatever one makes of his arguments in terms of the politics of the 1830s, he is clearly using terms and principles that extend back to the Founding.
281. See Act of July 14, 1798, ch. 74, 1 Stat. 596, 596-97;
282. Act of July 6, 1798, ch. 66, 1 Stat. 577, 577-78;
283. Act of June 25, 1798, ch. 58, 1 Stat. 570, 570-71;
284. Act of Jan. 29, 1795, ch. 20, 1 Stat. 414, 414-15.
285. See Act of June 25, 1798, ch. 58, 1 Stat. at 570-71.
286. See Act of July 14, ch. 74, 1 Stat. at 596-97.
287. See James Madison, Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS' CONSTITUTION 135, 135-36 (Philip B. Kurland & Ralph Lerner eds., 1987);
288. see also Thomas Jefferson, Kentucky Resolutions (Nov. 10, 1798), in 5 THE FOUNDERS' CONSTITUTION, supra, at 131, 131-34.
289. See Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 OHIO ST. L.J. 435, 494 (2007).
290. Id. at 449.
291. See Report of the Minority on the Virginia Resolutions (Jan. 22, 1799), in 5 THE FOUNDERS' CONSTITUTION, supra note 190, at 136.
292. Address, PHILA. GAZETTE, Feb. 9, 1799, at 1. In the bracketed text, the author referred to the "12th" proposed amendment to the Constitution, reflecting an early convention by which the original amendments were referred to according to the place on an original list of twelve proposed amendments. Our Tenth was the twelfth on that original list. See supra note 163
293. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
294. Id.
295. Id. at 406.
296. See, e.g., RICHARD R. BEEMAN, THE OLD DOMINION AND THE NEW NATION 196 (1972);
297. 2 BEVERIDGE, supra note 5, at 402;
298. MORTON FRISCH & RICHARD STEVENS, POLITICAL THOUGHT OF AMERICAN STATESMEN 75-76 (1973);
299. RALPH KETCHAM, JAMES MADISON 397 (1971);
300. Letter from John Quincy Adams to William Vans Murray (Apr. 9, 1799), in 2 WRITINGS OF JOHN QUINCY ADAMS 402, 403 (Worthington C. Ford ed., 1913);
301. Letter from Theodore Sedgwick to Alexander Hamilton (Feb. 7, 1799), in 22 THE PAPERS OF ALEXANDER HAMILTON 469, 470 (Harold C. Syrett et al. eds., 1975);
302. JOHN P. ROCHE, JOHN MARSHALL 32-34 (John P. Roche & Stanley B. Bernstein eds., 1967);
303. JAMES MORTON SMITH, FREEDOM'S FETTERS 151 (1956);
304. Jack L. Cross, John Marshall on the French Revolution and on American Politics, 12 WM. & MARY Q. 631, 637 (1955);
305. Morton J. Frisch, John Marshall's Philosophy of Constitutional Republicanism, 20 REV. Pol. 34, 39 & n.32 (1958);
306. William E. Nelson, The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence, 76 MICH. L. REV. 893, 933 (1978);
307. Robert C. Palmer, The Federal Common Law of Crime, 4 LAW & HIST. REV. 267, 277 (1986). Recent biographers of John Marshall have challenged this attribution. For a full discussion- and rejection-of the attempts to erase Marshall's name from the Minority Report,
308. see Lash & Harrison, supra note 191.
309. See James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in JAMES MADISON: WRITINGS, supra note 116, at 608. For a discussion of the Report and its significance for later states' rights theory,
310. see Kurt T. Lash, James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment, 74 GEO. WASH. L. REV. 165, 182-87 (2006).
311. PAGE, supra note 13, at 9. Page was a member of Congress from 1789 to 1797, and Governor of Virginia from 1802 to 1805. 4 HERRINGSHAW'S NATIONAL LIBRARY OF AMERICAN BIOGRAPHY 361 (Thomas William Herringshaw ed., 1914). Thus, not only was he in Congress when Madison gave his bank speech, he was a representative from Virginia at the time that state was considering the Bill of Rights. He would have been well aware of Madison's opposition to the Bank-indeed, the men regularly corresponded.
312. See Page, supra note 13, at 13-14.
313. Id. at 28-29.
314. Other campaign documents distributed in the months leading up to the national election stressed the same reading of federal power. In an essay entitled On the Election of the President of the United States, the author declared: "[The Constitution] appears to be founded entirely on the principle, that the federal government is only to exercise the powers that have been expressly delegated to it." A Republican, On the Election of the President of the United States, CAROLINA GAZETTE (Charleston, S.C.), Sept. 4, 1800, at 1.
315. See THE TRIAL OF CYRUS B. DEAN 47 (Burlington, Samuel Mills 1808) ("We learn from the eleventh and twelfth articles of the first amendment to the Constitution of the United States that the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people; 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. If then, Congress have power to intermeddle with the soil within a state's jurisdiction-to say who should, or rather who should not hold or possess it, this power must have been expressly delegated to the government of the United States.").
316. Although the first convention neither accepted nor rejected the Constitution, the second convention in 1789 voted in favor of ratification. See Chronology, 1786-1790, supra note 61, at xl, xlii.
317. See Glasgow's Lessee v. Smith, 1 Tenn. (1 Overt.) 144, 149 (1805).
318. See id. at 144-45.
319. Id. at 166 (emphasis added) (footnote omitted).
320. For a general account of the Acts and their aftermath, see DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 253-73 (1997).
321. For decades, the triumph of the Republicans was viewed as a vindication of the original understanding of the Constitution. See, e.g., Padelford, Fay & Co. v. Mayor of Savannah, 14 Ga. 438, 494-95 (1854) (discussing the battle over the Alien and Sedition Acts as a battle for a rule of strict construction of the Constitution). In this way, the election of 1800 represents an example of the sovereign people acting "people out-of-doors" in order to defend their understanding of the Constitution.
322. See KRAMER, supra note 28, at 35, 45. For a general account of the struggle over the Alien and Sedition Acts and the influential election of 1800, see Lash, supra note 199, at 180-95.
323. See Tucker, supra note 69, app. at 356-61.
324. Id. at 154.
325. See WHITE, supra note 1, at 87.
326. The War of 1812 created pressure on the nation's finances that "strengthened the case for a federal banking system." JEAN EDWARD SMITH, JOHN MARSHALL 441 (1996).
327. See James Madison, Veto Message to Congress (Mar. 3, 1817), in JAMES MADISON: WRITINGS, supra note 116, at 718, 718-20.
328. See id.
329. 17 U.S. (4 Wheat.) 122 (1819).
330. 17 U.S. (4 Wheat.) 518 (1819).
331. 4 BEVERIDGE, supra note 5, at 282.
332. A quick glance at the table of contents in constitutional textbooks and treatises will quickly confirm this. See, e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW, at xi, 63 (Robert C. Clark et al. eds., 16th ed. 2007).
333. Not long after McCulloch was decided, Justice Johnson wrote President Monroe on behalf of himself and the other Supreme Court Justices and informed him that "the lucid and conclusive reasoning" contained in McCulloch "completely commits them on the subject of internal improvements." Letter from Justice William Johnson to James Monroe (n.d.), in SMITH, supra note 214, at 468, 468-69. Justice Johnson suggested that the opinion in McCulloch should be "printed and dispersed through the Union." Id. at 665 n.128.
334. See Tucker, supra note 69, app. at 142-43.
335. Id. at 308.
336. Id. at 143.
337. See Wickard v. Filburn, 317 U.S. 111, 120 (1942);
338. United States v. Darby, 312 U.S. 100, 124 (1941). For a discussion of the New Deal Court's reliance on Marshall in construing federal power, see 1 ACKERMAN, supra note 28, at 62;
339. see also Kurt T. Lash, The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 487-89 (2001) (discussing New Deal Court decisions involving the scope of the commerce power).
340. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 402-03 (1819) (emphasis added).
341. According to Mark Killenbeck, "Jones was the least prominent of the six men who argued but had a reputation as a 'legal genius.'" KILLENBECK, supra note 1, at 102.
342. McCulloch, 17 U.S. (4 Wheat.) at 363.
343. Id. at 403.
344. Id. at 404-05. Here Marshall builds upon arguments originally presented by his fellow Justice, Joseph Story, in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). There, Story argued: These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the constitution, which declares, 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." The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. Id. at 325-26. Notice that Story reads the Tenth Amendment as recognizing an undifferentiated national people. In this passage Story also manages to move from the federal government having no powers but those "expressly given, or given by necessary implication," to powers broadly construed unless a strict construction is expressly required or arises "by necessary implication." Id. at 326.
345. McCulloch, 17 U.S. (4 Wheat.) at 406.
346. See id.
347. Id. (emphasis added).
348. Id. at 423.
349. See id.
350. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).
351. Id. at 187-88.
352. McCulloch, 17 U.S. (4 Wheat.) at 402.
353. See id. ("The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law.").
354. James Madison, Detached Memoranda (n.d.), in JAMES MADISON: WRITINGS, supra note 116, at 745, 756. Despite his objections to the First Bank of the United States, then-President Madison signed into law the bill for the Second Bank of the United States. See Act of Apr. 10, 1816, ch. 44, 3 Stat. 266. Doing so opened him to criticism as having acted inconsistently with his stated view on the constitutionality of the First Bank. Madison insisted, however, that he had not changed his mind, but nevertheless believed that acquiescence was appropriate as a matter of precedent, particularly in light of the acceptance of the Bank by numerous political majorities. See Madison, supra. For a discussion of Madison's view of precedent and proper constitutional interpretation, see Lash, supra note 25, at 1448.
355. Madison, supra note 240, at 756.
356. Id.
357. In cases like Ogden v. Sounders, 25 U.S. (12 Wheat.) 213 (1827), Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829), Providence Bank v. Billings, 29 U.S. (4 Pet.) 514 (1830), Hawkins v. Barney's Lessee, 30 U.S. (5 Pet.) 457 (1831), and Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833), the Supreme Court opted for either a narrow view of federal power or a broad view of state authority.
358. See Mayor of N.Y. v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837) (narrowly construing the Commerce Clause and declaring "all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or
359. see also Hammer v. Dagenhart, 247 U.S. 251, 276-77 (1918) (striking down a federal law regulating the transportation of goods moving in interstate commerce);
360. The Civil Rights Cases, 109 U.S. 3, 24-26 (1883) (striking down federal power to prohibit private discrimination in public accommodations);
361. The License Cases, 46 U.S. (5 How.) 504, 586 (1847) (sustaining state law against a claim of exclusive federal power over liquor licenses).
362. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY 180-93 (1985).
363. 2 STORY, supra note 4, §§ 1907-1908, at 652-53.
364. 1 id. §§ 1048-1053, at 759-62.
365. 2 id. §§ 1067-1073, at 12-23.
366. As Story biographer R. Kent Newmyer writes, "The definition and location of sovereignty in the American federal system was, as Story correctly perceived, the foundation on which all else rested." See NEWMYER, supra note 245, at 184 (discussing how the Commentaries "made sovereignty unequivocally descend on the American people in 1776").
367. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819) ("It has been said, that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country.").
368. NEWMYER, supra note 245, at 184.
369. 27 U.S. (2 Pet.) 245 (1829).
370. 36 U.S. (11 Pet.) 102 (1837).
371. According to Justice Barbour in Miln: A state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation; where that jurisdiction is not surrendered or restrained by the constitution of the United States.... That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive. Id. at 139. For a discussion of the Taney Court's move away from the nationalist vision of John Marshall, see Kurt T. Lash, "Tucker's Rule": St. George Tucker and the Limited Construction of Federal Power, 47 WM. & MARY L. REV. 1343, 1382-85 (2006).
372. Dissenting in the Miln case, Story remonstrated: I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was, that the act of New York was unconstitutional; and that the present case fell direcdy within the principles established in the case of Gibbons v. Ogden Miln, 36 U.S. (11 Pet.) at 161 (Story, J., dissenting).
373. Letter from Joseph Story to Harriet Martineau (Apr. 7, 1837), in 2 LIFE AND LETTERS OF JOSEPH STORY 275, 277 (William W. Story ed., Boston, Litde & Brown 1851).
374. JOHN TAYLOR, CONSTRUCTION CONSTRUED, AND CONSTITUTIONS VINDICATED 298 (Richmond, Shepherd & Pollard 1820).
375. Id. at 46.
376. THOMAS LAW, THE STATESMAN'S MANUAL OF THE CONSTITUTION OF THE UNITED STATES 11 (n.p., n.d.).
377. Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869) (emphasis added).
378. I owe this subpart's title to the fine work of Charles Lofgren. See Lofgren, supra note 30, at 336 (writing of James Madison's "Middle Ground" and its fate).
379. See Letter from James Madison to Edward Everett (Aug. 28, 1830), in JAMES MADISON: WRITINGS, supra note 116, at 842, 842 (rejecting the doctrine of nullification);
380. Letter from James Madison to Mathew Carey (July 27, 1831), in JAMES MADISON: WRITINGS, supra note 116, at 858, 858-59 (same).
381. THE FEDERALIST No. 39 (James Madison), supra note 34, at 246.
382. See U.S. CONST, art. V (requiring two-thirds of the states (or two-thirds of both houses of Congress) to propose an amendment and three-fourths of the states to ratify).
383. See Lofgren, supra note 30, at 341;
384. see also MORGAN, supra note 76, at 267 ("To that end [Madison] envisioned a genuine national government, resting for its authority, not on the state governments and not even on the peoples of the several states considered separately, but on an American people, a people who constituted a separate and superior entity, capable of conveying to a national government an authority that would necessarily impinge on the authority of the state governments.").
385. See supra note 199 and accompanying text.
386. See Letter from James Madison to Edward Everett, supra note 262, at 852 (claiming that the nullifiers were wrong to claim the Virginia Resolutions supported their cause).
387. See, e.g., Alden v. Maine, 527 U.S. 706, 758-59 (1999).
388. See WOOD, supra note 52, at 536-43.
389. 3 ELLIOT'S DEBATES, supra note 9, at 445 (reporting the statement of Patrick Henry on June 14, 1788).
390. See WOOD, supra note 52, at 541.
391. See Wickard v. Filburn, 317 U.S. 111 (1942);
392. United States v. Darby, 312 U.S. 100 (1941);
393. supra note 225 and accompanying text.
394. See, e.g., New York v. United States, 505 U.S. 144, 156 (1992).
395. See Lash, Lost Jurisprudence, supra note 29, at 643 (observing that Madison and other writers of his generation regarded the Ninth and Tenth Amendments as "twin guardians of federalism"). As I have discussed elsewhere, although the clauses are mutually reinforcing and overlap to some degree, they nevertheless express distinct principles of limited federal power. See Lash, Textual-Historical Theory, supra note 29, at 919-21.
396. 2 U.S. (2 Dall.) 419 (1793).
397. Id. at 473-78 (opinion of Jay, C.J.).
398. U.S. CONST, amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.")
399. I plan to explore these connections in an upcoming article.
400. See, e.g., United States v. Morrison, 529 U.S. 598 (2000);
401. Printz v. United States, 521 U.S. 898 (1997);
402. Lopez v. United States, 514 U.S. 549 (1995);
403. New York v. United States, 505 U.S. 144 (1992).
404. But see Gonzales v. Raich, 545 U.S. 1 (2005) (broadly interpreting the commerce power).
405. For a discussion of how the historical Ninth and Tenth Amendments might be reconciled with the Fourteenth Amendment, see Lash, supra note 145, at 875-79.
406. As is usually the case, James Madison provided us with a number of clues regarding how this principle of expressly delegated power might be put into practice. Madison believed that, over time, judicial review would produce specific doctrines and "legal landmarks" clarifying the area of retained sovereignty even as it allowed for the legitimate exercise of federal authority. We have some idea of what Madison viewed as proper landmarks. See supra note 215 (internal improvements veto);
407. supra notes 162-163 (the bank speech). But Madison also left room for "political precedent" whereby an otherwise unduly broad exercise of federal power might receive sufficient sanction over time that later courts would be obliged to uphold the power as a matter of entrenched precedent. For an analysis of Madison's views on originalism and precedent, see Lash, supra note 25, at 1444-53.