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Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash
Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash
Kurt T. Lash
Although most scholars and courts assume that the Eleventh Amendment emerged from a sudden “shocked” public reaction to the Supreme Court’s decision in Chisholm v. Georgia, this article contends that the modern emphasis on Chisholm as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of …
The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And "Expressly" Delegated Power, Kurt T. Lash
The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And "Expressly" Delegated Power, Kurt T. Lash
Kurt T. Lash
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 …