[gutzmank]

The point about Article II of the Articles of Confederation is regurgitated by virtually every law professor who addresses the question of the Constitution’s nature — national or federal — because legal education is case-law education, and John Marshall’s opinion in MCCULLOCH V. MARYLAND (1819) is a “classic case.” In that opinion, Marshall made that claim: that the word “expressly” was omitted from the 10th Amendment, and so the 10th Amendment doesn’t actually have any meaning.

Marshall knew perfectly well that the Federalists had said exactly the opposite of this in the ratification debates, particularly in Virginia, where Marshall was a prominent participant. Over and over, leading Federalist orators told the Richmond Ratification Convention that the unamended Constitution meant that Congress would only have the powers *expressly* delegated. Two of the three chief spokesmen for ratification, Governor Edmund Randolph (one of the five most prominent Philadelphia Convention Framers) and George Nicholas, said so repeatedly.

If the unamended Constitution gave Congress only the powers expressly delegated, omission of the word “expressly” from the 10th Amendment could not change that fact.

I have written about this subject in several places, including JAMES MADISON AND THE MAKING OF AMERICA, VIRGINIA’S AMERICAN REVOLUTION, A COMPANION TO JAMES MADISON AND JAMES MONROE, and “Edmund Randolph and Virginia Constitutionalism,” THE REVIEW OF POLITICS (2000).

Beyond that, I also provide detailed accounts of the reasons for scrapping the Articles and adopting the Constitution in both JAMES MADISON AND THE MAKING OF AMERICA (available in paperback day after tomorrow) and THE POLITICALLY INCORRECT GUIDE TO THE CONSTITUTION. The short of it is that nationalists wanted a central government capable of funding its essential functions, but so did virtually everyone else in the American political elite; Patrick Henry, for example, long favored amending the Articles to give Congress a taxing power, though of course he did not want to see an entirely new central government created.

Federalist propaganda about the failure of the Articles of Confederation was consistent. Whether it was candid, who knows?