Amdt10.2.1 Tenth Amendment: Early Doctrine

Tenth Amendment:

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.

In McCulloch v. Maryland,1 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause2 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states’ rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that amendment to the states.3 Stressing the fact that the amendment, unlike the cognate section of the Articles of Confederation, omitted the word expressly as a qualification of granted powers, Marshall declared that its effect was to leave 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 upon a fair construction of the whole instrument.4


  1.  Jump to essay-117 U.S. (4 Wheat.) 316 (1819).
  2.  Jump to essay-2See discussion under Coefficient or Elastic Clause, supra.
  3.  Jump to essay-3McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819) (argument of counsel).
  4.  Jump to essay-417 U.S. at 406. From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. United States v. Darby, 312 U.S. 100, 124 (1941).