922                                            ARIZONA LAW REVIEW                                     [Vol. 31


Furthermore, both Houses of Congress refused to insert the word "expressly" before the word "delegated" to qualify the powers of the federal government.58 As a result, the amendment did not contain a specific delineation or limitation of powers.59 The final wording of the tenth amendment provides.60

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.

Some opponents of the Constitution were unsatisfied with the failure to explicitly identify the relationship between the federal and state governments.61  Their objections notwithstanding, Congress passed the tenth amendment as part of the Bill of Rights, and the states later ratified it. Conflicts over the division of power between the federal and state governments, however, were almost inevitable.62

The disagreements began with McColluch v. Maryland.63 In that case, Chief Justice Marshall declared that since the tenth amendment omitted the word "expressly" as a qualification of granted powers, the delegation of a specific power to the federal government under the Constitution or its reservation to the states under the tenth amendment would depend upon a fair construction of the entire Constitution.64  Gibbons v. Ogden65 reaffirmed this interpretation.  In Gibbons, the Court balanced the express and concurrent powers of the federal government under the Constitution against the powers of the states reserved to them under the tenth amendment.  The Court concluded that New York's law granting the defendants a monopoly of the river traffic to New York City must yield to the federal government's authority to regulate interstate commerce under the Commerce Clause.66

For almost one hundred years following these cases, the Supreme Court frequently invoked the tenth amendment to limit powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the fourteenth

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58. Id. (also referring to 2 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1150-51 (1971)).

59. Id. Later, United States v. Sprague, 282 U.S. 716,733-34 (1931), reiterated that the tenth amendment added nothing to the Constitution and has no limited or special operation upon it.


61. Garcia, 469 U.S. at 569 n.l4 (Powell, J., dissenting) (quoting Letters of Agrippa, reprinted in 1 B. SCHWARTZ, supra note 58, at 510-11 (1971)). The opponents of the Constitution: "were particularly dubious of the Federalists' claim that the States retained powers not delegated to the United States in the absence of an express provision so providing. . . . [I]t is a mere fallacy . . . that what rights are not given are reserved." Id.

62. C. PRITCHETT, supra note 53, at 54.

63. 17 U.S. (4 Wheat.) 316 (1819).

64. Id. at 406.

65. 22 U.S. (9 Wheat.) 1 (1824).

66. Id. at 239-40. The philosophy, followed in McColluch and Gibbons, that the Court interprets the Constitution by a fair construction of the entire document, is generally followed in all of the Court's cases. See supra notes 63-65 and accompanying text. This approach is reflected in the tenth amendment cases from McColluch through National League of Cities and Garcia. That line of cases gave effect to the powers and immunities of the states when the Supreme Court, in construing the entire Constitution, defined them as "inherent" in the Constitution or associated them with the tenth or other amendment. ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, REFLECTIONS ON GARCIA AND ITS IMPLICATIONS FOR FEDERALISM, at 14-15 (1986) [Hereinafter REFLECTIONS].

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