The 10th amendment doesn’t sound like most others in the Bill of Rights. There’s no mention of specific “freedoms” (of press, religion, assembly) or “rights” to be protected. Instead, the 10th Amendment functions as a commentary on the Constitution itself. James Madison wrote the 10th Amendment to allay fears that the new federal government—as created by the Constitution—would trample on the authority of states and the rights of individual Americans.
The 10th Amendment to the U.S. Constitution reads:
“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.”
Madison, often called the “Father of the Constitution,” wrote the 10th Amendment along with all 10 of the amendments collectively known as the Bill of Rights. What's ironic is that Madison, like his fellow Federalist Alexander Hamilton, didn’t think the Constitution needed a bill of rights at all.
George Mason Calls for a Bill of Rights
During the summer of 1787, representatives from all 13 states met in Philadelphia for the Constitutional Convention. Over three months of heated deliberations, the question of whether to include a bill of rights in the Constitution came up only once.
By the time the delegates met, 11 of the 13 states had already written their own constitutions, and seven of those state-level documents included a “Declaration of Rights.” Most of them were modeled on the Virginia Declaration of Rights, written in 1776 by Virginia delegate George Mason.
Mason, a staunch Anti-Federalist, believed the only way to protect Americans from government tyranny was to explicitly list their rights as citizens. That’s why he wrote the Virginia Declaration of Rights and why he felt strongly that the new federal Constitution should also include a guarantee of individual liberties.
On August 31, 1787, just weeks before the Constitution was signed, Mason despaired over the lack of a bill of rights ensuring specific freedoms and protections under the new government. He declared that he “would sooner chop off his right hand than put it to the Constitution as it now stands."
Federalists Thought Bill of Rights Was Unnecessary
Federalists like James Madison and Alexander Hamilton didn’t disagree with the importance of individual rights and liberties—including speech, religion and the right to a fair and speedy trial—they just didn’t think a separate bill of rights was necessary.
In Federalist No. 84, Hamilton wrote, “The truth is... that the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”
“It’s true that there are provisions within the Constitution that act like a bill of rights,” says John Vile, a political science professor at Middle Tennessee State University. “Article I Section 8 of the Constitution lists the powers of Congress, then Section 9 lists limitations on those powers, like no bills of attainder and no ex post facto laws. Article VI explicitly states that there would be no religious test for holding office.”
Hamilton and Madison thought that the Constitution, hammered out during the convention, succeeded in creating a limited federal government with specific powers and that an additional bill of rights wasn’t required to protect individuals and states.
In Federalist No. 45, Madison wrote, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”
Ratifying Conventions Demand Bill of Rights
On September 17, 1787, all but three of the delegates to the Constitutional Convention signed the proposed Constitution without a bill of rights (George Mason was not one of them). Next, it went to the 13 states for ratification.
That’s when the Constitution hit a roadblock. While the Framers didn’t think a bill of rights was necessary, the ratifying conventions certainly did.
“When each state called a convention to ratify the Constitution, the question on everybody’s mind was, ‘Where's the bill of rights?’” says Vile, author of The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America’s Founding. “There were a lot of people saying they would only ratify the constitution if certain rights were included. Others were calling for a new Constitutional Convention.”
Eight of the 13 states voted to ratify the Constitution only after receiving a promise from Madison that a bill of rights would be adopted later. Madison’s bigger fear was that without one, Mason and others might convene a second Constitutional Convention, which could introduce all sorts of disruptive new ideas.
“In a second convention, they could try to eliminate the judiciary or reduce the presidency to a one-year term,” says Vile. “Madison thought that [adding a bill of rights] was a good horse trade."
Writing the 10th Amendment
The task of writing the Bill of Rights was taken up by the First Congress of the United States when it convened in September 1789. James Madison, a newly elected representative from Virginia, took the lead in drafting the amendments even though he had opposed including a Bill of Rights. He wanted to ensure the document focused on individual liberties, not on amendments that would alter the structure of government.
Madison originally proposed 19 amendments to address all the concerns raised by the states, but Congress whittled the list down to 12. Once again, the states convened ratifying conventions to consider the amendments, of which only 10 were approved and became the Bill of Rights.
Both the Ninth and 10th Amendments were substantively different from the first eight. Madison included them to address two separate concerns. One reason that Madison and other Federalists initially opposed a Bill of Rights was that no list of liberties could ever be complete. If a right didn’t make the list, was it not guaranteed?
To address that question, the Ninth Amendment reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Madison's second worry was that by including a Bill of Rights, Congress was signaling that the Constitution was too broad and the federal government needed to be constrained. The 10th Amendment was Madison’s way of saying that the fundamental nature of the Constitution had not changed. It always created a limited government with specific powers.
Interestingly, Madison and Congress chose the wording of the 10th Amendment carefully. At first glance, it’s very similar to Article II of the Articles of Confederation, the nation’s first constitution, which reads:
“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.”
Madison’s 10th Amendment reads:
“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.”
The key difference is the word “expressly.” During the debate over the Bill of Rights in Congress, some lawmakers wanted the 10th Amendment to read: “The powers not expressly delegated to the United States by the Constitution... are reserved to the States...”
That version may have imposed even stricter limits on the federal government's authority, because it could have excluded the “implied powers” of Congress embedded in the “necessary and proper clause.”
Instead, says Vile, Madison’s version of the 10th Amendment “leaves open the possibility—which Madison later fought, by the way—that the Constitution could be interpreted very broadly.”
The 10th Amendment, along with the rest of the Bill of Rights, was ratified on December 15, 1791.
