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word "expressly" found in the Articles disappears in the Constitution. Yet consider some-
thing called the New Federalist Platform (http://www.reagan2000.com):
As the 10th Amendment makes clear, "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people." This means that only
those powers, responsibilities and duties the Constitution explicitly author-
izes are legitimate for the national government, and all that is not so author-
ized is forbidden.
This statement accurately reproduces the Tenth Amendment, but then quietly adds to it a
version of the Articles' "expressly"—the word "explicitly"—in a translation of the Tenth
Amendment into Articles form. This is politically astute, but not quite honest.
Daniel Farber helpfully summarizes the central premises of this New Federalism, of
which the most important is the first:
The first tenet is that the states retain crucial aspects of sovereignty. Sover-
eignty is a concept we usually identify with independent nations. To attrib-
ute sovereignty to the states is in some degree to assign them some aspect, if
only residual, of nationhood. In the strongest version, that espoused by
Raoul Berger and the four Term Limits dissenters, the sovereignty of the
states is actually primary. The states came before the federal government,
and they remain more fundamental to the constitutional scheme than the fed-
eral government, which is a creature of the separate peoples of the individual
states. A weaker version of this premise is that state sovereignty coexists
with federal sovereignty.
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The stronger version here is clearly the confederal structure of the Articles, while the weaker
version is the theory of dual federalism. With these two positions in mind, recall my ana-
lytical question at the outset of this essay: do the majority justices in the most politically
prominent of the recent federalism cases simply assert against the strong nationalism of the
post-New-Deal period a theory of union well within if nevertheless at the outer edges of the
Constitution's design, or do they in fact reassert a theory of union beyond that design, from
the Articles of Confederation? The former position indeed goes beyond the Constitution to
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Daniel A. Farber, "The Constitution's Forgotten Cover Letter: An Essay on the New
Federalism and the Original Understanding," 94 Michigan Law Review 615 (1995), at 625
(fn. omitted). Farber lists as the second tenet the claim that ". . . if the states are to have
some form of sovereignty, they must have some sphere of exclusive power or, at the very
least, a sphere that the federal government can only enter under special circumstances” (at
625), and as the third tenet the claim that ". . . the states are not merely a structural feature of
our governmental system but an important affirmative good in need of protection” (at 626).
Convention