A Review of Federalism: The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism
by Diane Rufino, December 8, 2013
** This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report
In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to. Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed. The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate. In that speech, Madison argued:
“The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)
The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.
And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments). The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.
With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern.
If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.
In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”
A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution. This Bill, like the Constitution itself, begins with a preamble: (more…)