The Original Meaning of an Omission
Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.
According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.
As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.
It is also almost certainly wrong.
Harold
