Cite as: 514 U. S. 779 (1995)
Thomas, J., dissenting
raised by the present case, however, is not whether any principle of state sovereignty implicit in the Tenth Amendment bars congressional action that Article I appears to authorize, but rather whether Article I bars state action that it does not appear to forbid. The principle necessary to answer this question is express on the Tenth Amendment's face: Unless the Federal Constitution affirmatively prohibits an action by the States or the people, it raises no bar to such action.
The majority also seeks support for its view of the Tenth Amendment in McCulloch v. Maryland, 4 Wheat. 316 (1819). See ante, at 802. But this effort is misplaced. McCulloch did make clear that a power need not be "expressly" delegated to the United States or prohibited to the States in order to fall outside the Tenth Amendment's reservation; delegations and prohibitions can also arise by necessary implication.4 True to the text of the Tenth Amendment, however, McCulloch indicated that all powers as to which the Constitution does not speak (whether expressly or by necessary implication) are "reserved" to the state level. Thus, in its only discussion of the Tenth Amendment, McCulloch observed that the Amendment "leav[es] 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 on a fair construction of the whole [Constitution]." 4 Wheat., at 406. McCulloch did not qualify this observation by indicating that the question also turned on whether the States had enjoyed the power before the framing. To the contrary, McCulloch seemed to assume that the people had "conferred on the general government the power contained in the constitution, and on the States the whole residuum of power." Id., at 410.
The structure of McCulloch's analysis also refutes the majority's position. The question before the Court was
4 Despite the majority's odd suggestion to the contrary, see ante, at 796- 797, n. 12, I fully agree with this sensible position. See supra, at 848.
853
Page: Index Previous 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 NextLast modified: October 4, 2007