Tenth Amendment

• Description: Amendment that reserves for the states those powers not delegated to the federal government by the Constitution.

Significance: The Supreme Court’s decisions involving the Tenth Amendment were not always consistent. At times, the amendment was criticized as redundant and, at others, reaffirmed as a valuable part of the Constitution.

The Tenth Amendment protects the reserved powers of the state, those not delegated to the federal government by the US Constitution. The First Congress received numerous requests to include a means of protecting the reserved powers of the states. These concerns arose in many quarters during the Constitutional Convention of 1787 and the ratification process, especially among the antifederalists, who feared that an overbearing national government would assume the authority of the states. Article II of the Articles of Confederation contained explicit provisions for protecting states, initiating a system whereby “each state retains its sovereignty.” Various early state constitutions included provisions outlining the primacy of states in the confederal arrangement.

Federalists and Antifederalists

The most popular form of amendment requested during the state ratification conventions and proposed to the First Congress concerned a reserved powers clause. The defenders of the Constitution argued that such a provision was unnecessary. James Madison suggested in No. 39 of The Federalist (1788) that each state was “a sovereign body,” bound only by its voluntary act of ratification. Other federalists at the Virginia ratifying convention, including James Wilson, Alexander Hamilton, and John Marshall, held that such a provision was already present in the Constitution and that the new government would have only the powers delegated to it.

Opposition to and suspicion of the proposed Constitution on the grounds that it would infringe on the privileged status of the states was widespread. The defenders of state authority viewed the states as the repository of reserved power, and many believed that states were invested with an equal capacity to judge infractions against the federal government. In the Virginia ratifying convention, George Nicholas and Edmund Randolph, members of the committee reporting the instrument of ratification, noted that the Constitution would have only the powers “expressly” delegated to it. If federalists disagreed with the stress on state authority, they generally viewed a reserved power clause as innocuous, and Madison included such a provision among the amendments he introduced in 1789.

In the First Congress, Elbridge Gerry, a founder and antifederalist elected to the House of Representatives, introduced a proposal reminiscent of the Articles of Confederation, leaving to the states all powers “not expressly delegated” to the federal government. Gerry’s proposal was defeated, in part because of concerns about the similarity between the language of his amendment and that of the articles.

Others who took a states’ rights or strict constructionist view of the Constitution, including Thomas Jefferson, persisted in defending state power. Before ratification of the Tenth Amendment, Jefferson advised President George Washington that incorporating a national bank was unconstitutional, basing his opinion on the amendment. Jefferson later composed the Kentucky Resolutions, which defended the states' sovereignty and noted that the states retained a means of protection when threatened. To describe the process of state action, Jefferson supplied a new term, nullification, to note the immediacy and severity of the “remedy” necessary to prohibit the federal government from absorbing state authority.

Defenders of the federal government, sometimes described as nationalists or loose constructionists, argued that Congress must assume more power if the needs of the country were to be met. Most prominent among the advocates of increased federal authority was Hamilton. For Hamilton, the Tenth Amendment was unnecessary as the political order already protected states. The Constitution, according to the nationalists, already contained provisions for the exercise of federal power, including the necessary and proper clause and supremacy clause.

The Court and the Amendment

The Supreme Court addressed the controversy in McCulloch v. Maryland (1819). The Court upheld the constitutionality of a national bank, even though such an institution was not specified in the Constitution. In dismissing a strict delineation of state and federal authority, the Court, under the leadership of Marshall, extended the powers of Congress at the expense of the states. However, the Marshall Court also affirmed the notion that police powers belonged exclusively to the states. Under Chief Justice Roger Brooke Taney, the Court assumed a stricter constructionist posture.

With the Civil War and Reconstruction, the authority and influence of the federal government were greatly increased. The role of the Tenth Amendment was essentially disregarded as federal troops occupied southern states and Congress provided governance. The authority of the states continued to suffer, resulting in part from a series of Court decisions in the twentieth century. In Champion v. Ames (1903), the Court affirmed a congressional act that prohibited the sale of lottery tickets across state lines as an effort to limit gambling. Before Champion, decisions regarding gambling were made by the states. The decisions of the Court were not consistent, and it soon adopted a view of the relationship between states and the federal government that allowed each to be authoritative in its own sphere, exempting “state instrumentalities” from federal taxation. In Hammer v. Dagenhart (1918), the Court ruled in favor of state power in terms of commerce. The Tenth Amendment would, however, suffer its most severe criticism in United States v. Darby Lumber Co. (1941). In this decision, Chief Justice Harlan Fiske Stone discredited the amendment as “redundant” and a “constitutional tranquilizer and empty declaration.”

Although Stone dismissed the amendment, continued authentication of its importance can be seen in Fry v. United States (1975), in which the Court affirmed that the amendment “expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” In United States v. Lopez (1995), a federal law mandating gun-free zones on public school campuses was struck down as unconstitutional, representing a landmark limitation on the federal government's power under the commerce clause. In Printz v. United States (1997), the Court again forcefully affirmed the amendment, noting that the amendment made express the residual state sovereignty that was implicit in the Constitution’s conferring of specific governmental powers to Congress.

In Gonzales v. Raich (2005), the Court upheld the federal government's authority to enforce the Controlled Substances Act even in states that had legalized medical marijuana, affirming that the Court's precedent had established Congress' commerce clause power to regulate intrastate activities that may affect interstate commerce. The Tenth Amendment’s anti-commandeering doctrine guided the Court’s decision in Murphy v. National Collegiate Athletic Association (NCAA) (2018), which found New Jersey’s decision to legalize betting on sports could not be dictated by federal law.

Bibliography

Berger, Raoul. Federalism: The Founders’ Design. University of Oklahoma Press, 1987.

Berns, Walter. “The Constitution as Bill of Rights.” How Does the Constitution Secure Rights? Edited by Robert A. Goldwin and William Schambra. American Enterprise Institute, 1985.

Berns, Walter. “The Meaning of the Tenth Amendment.” A Nation of States. Edited by Robert A. Goldwin. Chicago, McNally, 1963.

Calhoun, John C. “A Discourse on the Constitution and Government of the United States.” Union and Liberty: The Political Philosophy of John C. Calhoun. Edited by Ross M. Lence. Liberty Fund, 1992.

Hickok, Eugene W., Jr. “The Original Understanding of the Tenth Amendment.” The Bill of Rights. Edited by Eugene W. Hickock, Jr. University of Virginia Press, 1991.

Kaminski, John P., et al., eds. The Documentary History of the Ratification of the Constitution, Volumes VIII-X: Ratification of the Constitution by the States, Virginia. State Historical Society of Wisconsin, 1993.

Levin, Mark R. The Liberty Amendments: Restoring the American Republic. Threshold, 2013.

Lofgren, Charles A. “The Origins of the Tenth Amendment, History, Sovereignty, and the Problems of Constitutional Intention.” Constitutional Government in America. Edited by Ronald K. L. Collins. Carolina Academic, 1980.

"On This Day, the Supreme Court Reinforces the 10th Amendment." National Constitution Center, 27 June 2023, constitutioncenter.org/blog/on-this-day-the-supreme-court-reinforces-the-10th-amendment. Accessed 1 Oct. 2024.

Story, Joseph. Commentaries on the Constitution of the United States. Vol. 2. Little, 1833.