On 7 June 1776 Virginia delegate Richard Henry Lee presented a resolution to the Second Continental Congress that called for the American colonies’ independence. In response, Congress formed three committees: to draft a declaration of independence, to draft articles of Union, and to seek foreign assistance. More than a year passed before Congress forwarded its proposed Articles of Confederation to the states for ratification. One of the most contentious issues in drafting the Articles was to establish the relationship between the states and the new central government. Americans did not want to replace the oppressive imperial government in London with a similarly oppressive government in Philadelphia.
In 1766 Parliament asserted its authority over the colonies with the Declaratory Act, claiming that it had the power to bind Americans in all cases whatsoever. A decade later, the Articles of Confederation swung the pendulum the other way, severely limiting the authority of the new American Congress over the states. The first article provided that “The Stile of this confederacy shall be ‘The United States of America.’ ” The very next article provided that “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.” On various occasions, out of necessity, Congress would act beyond its “expressly delegated” powers, such as passing ordinances for the sale and administration of the Northwest Territory and the raising of an army ostensibly to suppress the Indians on the frontier but in actuality to help suppress Shays’s Rebellion.
When the Constitutional Convention met in May 1787, Congress had instructed the delegates to merely revise the Articles of Confederation making “the federal constitution adequate to the exigencies of government and the preservation of the Union.” Instead of revising the Articles, the Convention delegates proposed a new and unprecedented form of government that greatly divided Americans in a year-long struggle over ratification. In addition to the lack of a bill of rights, the ambiguous new federal-state relationship provided the most serious objections to the new Constitution. The second article of the Articles of Confederation was jettisoned. Instead, Congress was authorized “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” To many opponents of the Constitution, the necessary and proper clause was a reincarnation of the hated declaratory act.
The Constitutional Convention recommended that the Constitution be submitted “to a Convention of Delegates, chosen in each State by the People” “for their Assent and Ratification.” Once adopted by nine states, the Constitution would go into effect among the ratifying states. All of the states called ratifying conventions. Beginning with Massachusetts—the sixth state to meet in convention—the state conventions recommended that the first federal Congress consider amendments to the Constitution. All totaled, seven conventions and the dissenting minorities of the Pennsylvania and Maryland conventions recommended amendments. South Carolina proposed as few as four; Virginia, New York, and North Carolina each suggested more than forty.
Strikingly, every set of amendments included a provision limiting the federal government to expressly delegated powers with all other powers being reserved to the states. Six of the nine convention amendments actually included the word “expressly,” while the Virginia and North Carolina amendments provided “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.” The New York Convention provided that the states or the people retained every power, jurisdiction and right which was not “clearly delegated to the Congress.”
The issue would persist into the deliberations of the First Federal Congress. On 8 June 1789, Representative James Madison introduced a slate of amendments in the first House of Representatives. One read: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.” Madison notably omitted the word “expressly.” During the congressional debate over the amendments, the wording of this amendment was unchanged until the Senate on 7 September 1789 added the words “or to the people” to the end of the amendment but rejected a motion to add the word “expressly” before the word “delegated.”
On 26 September 1789, Congress approved twelve amendments that were then sent to the states for their consideration. By 15 December 1791, with the adoption by Virginia, ten of Congress’ original twelve amendments were adopted by the necessary three-quarters of the states. Even before the adoption of the Tenth Amendment, however, the issue of the extent of Congress’ power was debated. As President George Washington considered the bill proposing the establishment of a national bank, he asked for advice from Secretary of State Thomas Jefferson and Secretary of the Treasury Alexander Hamilton. Jefferson opposed the bill because the Constitution did not give Congress the specific power to create such a bank. Hamilton, however, strongly supported the bank. In his written opinion dated 23 February 1791, Hamilton defended Congress’ implied powers by stating that the “general principle . . . inherent in the very definition of Government and essential to every step of the progress to be made by that of the United States; namely—that every power vested in a Government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions & exceptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society.” Washington accepted Hamilton’s reasoning and signed the bank bill setting the first major precedent for implied powers. Three decades later, Chief Justice John Marshall relied on the same principle in the case of McCulloch vs. Maryland (1819) giving the Supreme Court’s endorsement of implied congressional authority:
“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,’ thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.”