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Tenth Amendment: This Right is Reserved

The Passage

The Tenth Amendment was passed along with nine others that became known as the Bill of Rights in 1791. Unlike the first nine, the Tenth Amendment directly mentions states’ rights. The Constitution lists powers of the national government, but not of the states. While the colonists feared the federal government becoming too powerful, they also learned from the previous governing document, the Articles of Confederation, that granting states too much leniency could be equally disastrous. The Tenth Amendment was made to strike a balance between the two.

Amendment Text

“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.”

Interpretation

The Tenth Amendment defined a hard limit to the federal government's powers. While the nine prior amendments protect individuals' rights, this Amendment further restricts the national government's authority to only what's granted by the Constitution, or what is within their Constitutional purview. Any powers not granted would be kept for the states or their people.

The wording of the Tenth Amendment is very particular. The emphasis on “the powers not delegated to the United States government” implies broad power, rather than limiting the states to explicit powers. At the same time, due to Constitutional clauses like the Commerce Clause and the Necessary and Proper Clauses, the federal government can reasonably expand its power when necessary and address changing situations or emerging issues. The Tenth Amendment allows for state and individual rights to expand without creating an exhaustive list of their liberties. However, this can lead to ambiguity over who has power in certain situations, especially modern ones.

Major Court Cases

The Supreme Court frequently hears cases concerning the Tenth Amendment. Commonly, it's tested against the Commerce Clause, like in United States v. Darby Lumber Co. The 1941 case ruling stated that the national government could regulate interstate commerce, and thus labor practices and conditions, without violating states' reserved powers. United States v. Darby Lumber Co. famously established that the Tenth Amendment is only "declaratory" of the national and state governments' relationship, which "had been established by the Constitution before the amendment..." Thus, the Supreme Court adopted a limited view of the Tenth Amendment, establishing that reasonable expansions did not infringe upon states' rights.

However, the Amendment has successfully been expanded in other ways. In the 1997 case Printz v. United States, the justices ruled that the national government cannot force state or local governments to implement federal programs. This ruling specifically applies to programs that violate the separation of powers clause and do not fall within the realm of another constitutional clause. Additionally, the ruling of Bond v. The United States in 2011 clarified that individuals and states could raise a legal challenge based on the Tenth Amendment. These two cases both further limited the power of the national government. Since these rulings, the most common Tenth Amendment violations have been found in unsubstantiated compulsory federal statutes. Generally, however, the Commerce and Necessary and Proper Clauses have granted the federal government expanded power. 

Controversies

The national government has more influence and power than it did in 1791, but the debate about states’ rights and the separation of powers continues. This growth means the government can address pressing social issues and provide essential aid, but the federal government also runs the risk of becoming too big and unwieldy. State governments have a closer connection to their citizens, and different states have different priorities and needs. The Tenth Amendment gives states the ability to check the national government's power, but the Amendment is also worded to allow the government to change with time. Striking a balance between the two is the main point of contention.

As such, the Tenth Amendment is often weaponized to either support or attack new federal policies, regardless of their specific content. Marijuana has become one such controversial topic, since states have argued the federal government doesn't have the authority to outlaw or legalize it. Federally mandated healthcare has also been hotly debated, especially after the passing of the Affordable Care Act and the Court's subsequent ruling that the national government overstepped its jurisdiction. The ambiguity of the Tenth Amendment leads to much wondering over whether any expansion of federal power is a natural progression or an infringement on states' rights.

Why Care?

The Tenth Amendment defines the purviews of both the federal and state governments. In doing so, it protects states, and by extension individuals, from excessive government interference. State governments can then more aptly meet the specific needs of their people. They're directly responsible for local services like public transportation and public education. As a result, state leaders are more receptive to citizen’s problems and willing to take action than national leaders that aren’t as locally focused. Conversely, the federal government is more equipped to deal with big issues that affect the whole nation. Both the state and nation governments are incredibly important, which can make defining certain powers challenging, but the Tenth Amendment helps find a balance between the two.

Think Further

  1. Who do you think should have more power, the national government or the states? Defend your answer using historical examples.
  2. How has the ideal role of the national government changed over time?
  3. How might the power balance between the federal government and the states be contradictory? Is it possible to achieve such a balance?

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  1. Bybee, Jay S. “The Tenth Amendment among the Shadows: On Reading the Constitution in Plato’s Cave.” Harvard Journal of Law and Public Policy, vol. 23, no. 2, 2000, p. 551. https://heinonline.org/HOL/Page?handle=hein.journals/hjlpp23&id=569&coll ection=journals&index=.
  2. Carrillo, David A, and Matthew Stanford. “All of a Sudden, Everyone Loves the Tenth Amendment.” The Recorder, ALM Media , 17 Apr. 2020. https://www.law.com/therecorder/2020/04/17/all-of-a-sudden-everyone-love s-the-tenth-amendment/?slreturn=20200703093301. 
  3. Lawson, Gary. “A Truism with Attitude: The Tenth Amendment in Constitutional Context.” Notre Dame Law Review , vol. 83, no. 2, Jan. 2007, pp. 469–504. https://heinonline.org/HOL/Page?handle=hein.journals/tndl83&id=479&collection=journals&index=. “Hammer v. Dagenhart.” Oyez, www.oyez.org/cases/1900-1940/247us251.