The Importance of the Word "Expressly" in Constitutional Interpretation
The tenth amendment to the United States Constitution 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." When this amendment was being drafted, the "states' rights" advocates kept putting the word "expressly" in before delegated. Madison kept taking it out. The reason he did so is that he thought the federal government should have the power to do what was not expressly delegated to it, but which was only implied in its expressly delegated powers. As a result, what passed was an ambiguous compromise: the states' rights people could say the amendment meant what they thought it should, and that "expressly" was implied. The "consolidationists" could interpret it their way, in which it meant the federal government could do anything that aided it in achieving the ends the Constitution explicitly set for it. ...