Tenth Amendment To The United States Constitution - Drafting and Adoption

Drafting and Adoption

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "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." After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers. However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.

When he introduced the Tenth Amendment in Congress, James Madison explained that many states were anxious to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights. The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.

The phrase "..., or to the people." was appended in handwriting as the Bill of Rights circulated between the two Houses of Congress.