Tenth Amendment

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Tenth Amendment

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 U.S. government collects taxes, holds elections, regulates businesses, and sets environmental standards for the nation. It builds roads, creates and enforces laws, settles lawsuits, and holds criminal trials. But state governments also do all of these things. Under the U.S. system of “dual sovereignty” (two governments), the federal and state governments share the power to govern. Inevitably, conflicts have arisen between the two governments. The question of where to draw the line between state and national authority was the center of debate during the drafting of the Constitution. Later, it nearly broke up the United States with the onset of the Civil War (1861–65).

The Tenth Amendment was written to help define the relationship between federal and state governments. The amendment does not specifically list the powers that belong to the states or to the federal government. Therefore, the Tenth Amendment has always been subject to a variety of interpretations, leading to dramatic shifts in the balance of power between the states and the federal government.

Ratification Facts

Proposed:

Submitted by Congress to the states on September 25, 1789, along with the other nine amendments that comprise the Bill of Rights.

Ratification:

Ratified by the required three-fourths of states (eleven of fourteen) on December 15, 1791. Declared to be part of the Constitution on December 15, 1791.

Ratifying States:

New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791 (amendment adopted).

Origins of the Tenth Amendment

In 1775, Britain’s thirteen American colonies each had separate identities with unique histories, religious traditions, and economies. Manufacturing, shipping, and small farms were dominant professions in the northern colonies. Most men were farmers, merchants, or paid laborers. In the southern colonies, by contrast, commercial crops were the main economy. Crops such as cotton and tobacco were raised on huge plantations (commercial farms) that depended heavily on the labor of African American slaves.

However, since the colonies were settled largely by immigrants from England, Ireland, and Scotland, these separate areas had a great deal in common. They shared many common institutions imported from England, such as the jury trial and colonial legislatures (law-making bodies) made up of elected representatives. Another common bond they shared was that Parliament (the British legislature) had the power to overrule the colonial legislatures. Thus Parliament could impose laws and regulations on the colonies without their consent.

Colonies join together

Throughout the 1700s, issues such as taxation, tariffs, and the presence of the British Army in the colonies (see chapter three) led to growing tensions between the colonies and the British government. The colonies eventually drew together. They boycotted British goods, staged large protests against British polices, and eventually went to war with Britain in 1775. When the American Revolutionary War ended in 1783, the American colonies had won their independence.

The newly independent American states were not eager to put themselves under another powerful central government. The states created a formal union with one another under the Articles of Confederation (1781). They intentionally created a weak central government and kept most government power at the state level.

Strengthening the national government

Under the Articles of Confederation, the new nation found it was difficult to deal with other countries. The weak central government could not speak with a strong national voice on matters of trade and foreign relations. In May of 1787, the states sent representatives to the Constitutional Convention in Philadelphia, Pennsylvania, to come up with a plan for strengthening the national government.

The convention was dominated by debates between Federalists, who favored a strong central government, and Anti-Federalists, who favored strong state governments (see Introduction). The Constitution that emerged from these debates created a system of “dual sovereignty” (two powers): the federal and state governments would both exercise government powers. However, the question of where one government’s powers end and the other’s begins remained open for debate. The Constitution only hints at the answer.

Federal powers

The Constitution divides the federal government into three branches: the executive branch, the judicial branch, and the legislative branch. The executive branch, headed by the president, carries out federal policies. The judicial branch, headed by the Supreme Court (see below), settles matters of national law. The legislative branch, embodied in the U.S. Congress, creates the nation’s laws. Section 8, Article I of the Constitution (see Introduction) enumerates (lists) Congress’s powers, including the powers to do the following:

raise taxes for the “defense and general welfare of the United States” (general welfare clause)
regulate commerce “with other nations and between the states” (commerce clause)
regulate naturalization (the process by which foreigners can become citizens)
create and regulate a national currency (money)
establish a postal system
create courts beneath the Supreme Court
declare war and maintain an army and navy
make all laws “necessary and proper” for carrying out the powers granted to the United States government by the Constitution.

This description of powers, however, with vague terms such as “general welfare” and “necessary and proper” left the exact powers of the Congress open to wide interpretation.

Enumerating rights

The new Constitution was ratified (approved) by the states in 1788, and George Washington (1732–1799) took office as the first president of the United States in 1789. But Anti-Federalists and the public at large were still wary of the new federal government’s power. One of the biggest concerns was that the Constitution contained no bill of rights. A bill of rights is a list of individual rights that cannot be violated by the government.

Federalists argued that since the government could only do what the Constitution said it could do, it was not necessary to also list what it could not do. But public uproar persuaded the Federalists to draft a bill of rights during Congress’s first session.

James Madison (1751–1836) was the main author of the Constitution and a representative to Congress from Virginia. Madison drafted proposals for all of the Bill of Rights amendments (see Introduction), including the Tenth Amendment. The Tenth Amendment was designed to ease the public’s fear by assuring people that once the federal government was firmly in place, it would not try to expand its powers beyond those given to it by the Constitution.

The amendment states that any powers not granted to the federal government in the Constitution are reserved (and can only be claimed) by the states and the people. However, the Tenth Amendment does not state which powers those are (see sidebar).

The Importance of Implied Power

When Madison made his proposal for the Tenth Amendment, Anti-Federalists wanted to limit the federal government’s powers as much as possible. They argued the amendment should state that “those powers not expressly delegated to the United States by the Constitution … are reserved to the States.” The use of the phrase “expressly delegated” would have limited the federal government to those powers and actions specifically enumerated in the Constitution and would have given the states all other governmental power.

Madison and other Federalists objected to the word “expressly.” They believed that the government had two kinds of powers: express and implied. Express powers were those powers specifically enumerated in the Constitution. Implied powers, by contrast, were those powers that the Constitution only suggested or hinted at.

Imagine a man hires you to watch his dog while he goes out of town. Before he leaves, he gives you three instructions: feed the dog twice a day, walk it in the local park every night, and, generally, take care of the dog. These are your “express” duties. However, to take care of the dog, you realize you have to exercise a number of implied duties—duties that are only hinted at in the owner’s instructions. For instance, feeding the dog also means making sure it has enough water. Perhaps the local park requires dogs to be kept on leashes. You have the implied duty to put the dog on a leash. If the dog gets sick, you might even have to take the dog to be seen by a veterinarian. Although the owner did not spell out any of these duties, they were all implied in his original instructions.

According to Madison, the framers (or writers) of the Constitution could not possibly list every single action the federal government might need to take while doing its duties. Instead, it was necessary for the government to exercise (put to use) certain implied powers in order to perform its express powers. Congress was dominated by Federalists (people who favored a strong central government) at the time. They passed the amendment without the word “expressly” in it.

However, the Tenth Amendment could not express the government’s implied powers any more than the Constitution could. The question of which powers were implied by the Constitution, in particular the commerce clause (which gave Congress the power to regulate commerce), continued to fuel debates over the reach of federal and state powers.

Defining Necessary and Proper

The Tenth Amendment was passed by Congress on September 25, 1789, and officially ratified by the states on December 15, 1791. But even before the amendment was ratified, the extent of the federal government’s powers came into question.

The Federalists’ interpretation

Federalists tended to favor a broad interpretation of federal powers. Secretary of the Treasury Alexander Hamilton (1755–1804) was a committed Federalist. Early in 1791, Hamilton proposed the creation of a national bank that would issue money, hold deposits of tax dollars, and lend money. The Constitution does not specifically give Congress the power create such a bank. But Hamilton argued that Congress’s power to create a bank was implied (see sidebar) in its power to collect taxes and regulate money and commerce.

The Federalist-controlled Congress supported Hamilton’s argument, as did President Washington. The first Bank of the United States was created. It put the government’s implied powers to use before the Tenth Amendment had even been ratified.

The Democratic-Republicans’ interpretation

Others in the country favored a more limited interpretation of federal power. Secretary of State Thomas Jefferson (1743–1826) opposed the national bank. He did not believe it was necessary to the federal government. He argued that the Constitution’s necessary and proper clause limited Congress to those laws that were necessary, not simply “convenient.”

Jefferson, a Virginian, was elected president in 1800. He was the first in a string of six consecutive presidents from the Democratic-Republican Party (later known as the Democratic Party). Many Democratic-Republicans had been Anti-Federalist and tended to favor state rights.

In 1817, President James Madison was now a Democratic-Republican. He vetoed a federal bill to construct roads and canals that would promote commercial activity between the states. Madison argued that the power to make the improvements did not appear “among the enumerated powers” in the Constitution. He also did not find that “any just interpretation” of the necessary and proper clause gave the federal government such powers.

The Supreme Court’s interpretation

Of course the ultimate power to interpret the Constitution and its amendments belongs to the Supreme Court of the United States, the nation’s highest court. The Court consisted of six justices (judges) until 1869 when it was expanded to include nine justices. Justices may write opinions supporting either side of a case, but the Court’s final ruling comes down to a vote of the justices.

In McCulloch v. Maryland (1819), the Court ruled in favor of a broad interpretation of the necessary and proper clause, and limited the states use of the Tenth Amendment to claim power. Congress had created the Second Bank of the United States in 1816. (In this case, President Madison approved the expansion of federal powers.) State governments immediately complained that the national bank was competing with their banks. When Maryland attempted to tax the Second Bank, the bank refused to pay. Maryland then sued James W. McCulloch, a cashier at the Second Bank.

Maryland argued that only the states have the power to create a government-owned bank. Maryland said the Tenth Amendment gives all powers not granted to the federal government to the states, and the Constitution did not give Congress the power to create a bank.

The Court ruled against Maryland. The Court stated that the federal government did indeed have implied powers. The government’s creation of a national bank was necessary for the collection of taxes, the lending of money, and the regulation of commerce. The Court also ruled that states had “no power, by taxation or otherwise” to interfere with “the operations of the constitutional laws enacted by Congress.” Therefore, Maryland could not tax the Second Bank.

This ruling tipped the balance of power in the federal government’s favor. But over the next several decades, states would take drastic actions in an attempt to tip the scales back.

The States Assert Their Power

The vast difference between the economies of the North and South was at the center of another battle emerging between state and federal powers. In 1816, Congress passed a national tariff (a tax on imported goods). The tariff was intended to help U.S. businesses by making foreign goods such as wool and cotton more expensive than similar goods produced in the United States. The tariffs helped the northern states but never did much for the economies of the southern states. In fact, some southern politicians argued that the tariffs actually hurt the South.

When Congress approved an even higher tariff in 1828, the South Carolina legislature drafted a protest document. The document declared that states had the right of “interposition,” that is, the right to ignore a federal law. Madison and Jefferson had made similar arguments as far back as 1798. They had argued that if enough states object to a federal law, the law could be declared null and void. But their ideas had not gained much support at the time.

South Carolina revived the idea of nullification by arguing that any state could nullify a federal law that it believed was unconstitutional. As rebellious as the ideas of interposition and nullification seemed, some southern states were discussing an even more drastic action—seceding (breaking away) from the United States altogether.

Early threat of secession

In 1832, President Andrew Jackson vetoed a bill to extend the Second Bank of the United States. Rejecting the McCulloch v. Maryland decision, Jackson found the bank neither necessary nor proper. By putting an end to the Second Bank, Jackson seemed to come down firmly on the side of state rights.

Also in 1832, Congress passed another tariff act, and South Carolina threatened to secede (break away) from the Union. Despite Jackson’s respect for state rights, he quickly sent troops to South Carolina to keep order. “Be not deceived by names,” Jackson warned the people of South Carolina, “disunion by armed force is treason.” Jackson, who had been born in South Carolina, also issued the Nullification Proclamation, which declared the idea of nullification an “impractical absurdity.”

Soon after the crisis in South Carolina, Congress lowered some tariffs, and South Carolina backed off of its threat to secede. The threat of secession, however, did not disappear. Southern states continued to object to federal actions that they felt infringed upon state rights. Less than thirty years after South Carolina first threatened to secede, the first American Civil War (1861–1865) battle would be fought on the state’s soil.

Slavery and states rights

The southern agricultural economy depended on the use of slaves. Yet, from the beginning of the nineteenth century, debate raged between northern “free states” and the southern “slave states” over whether new states should have the right to legalize slavery. The nation continued to grow through the first half of the 1800s. Through a series of political compromises, it maintained a nearly perfect balance between slave states and free states.

However, the issue of slavery remained a source of tension between the states. Abolitionists sought to end of slavery in all states. They opposed slavery on moral and economic grounds. Southern states, meanwhile, resented any threat of interference with their most important source of labor (slaves).

In 1857, the Supreme Court heard the case of Dred Scott v. Sanford. Scott, a slave from Missouri, had sued for his freedom after his owner died. During the 1830s, Scott had lived with his owner in Illinois and other free northern territories before returning to Missouri. According to Scott, his free status in the northern territories had made him a free man forever.

However, the Supreme Court ruled that Scott was still a slave (and therefore not a U.S. citizen), and did not have the right to sue for his freedom. It also ruled that at the time the Constitution was written, slaves were considered property. The Constitution did not give the federal government the power to take away an owner’s property. Under the Tenth Amendment, the Court said, the power to free slaves was reserved for the states.

The Court also ruled that just living in a free state did not make Scott a free man. “As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character,” the Court said, “his status, as free or slave, depended on the laws of Missouri, and not of Illinois.”

The Dred Scott decision meant slaves who escaped to free states could legally be captured and returned to their owners. It also meant that the federal government could not interfere with a state’s right to allow or abolish slavery. Abolitionists were furious with the decision. Southern states continued to worry about federal interference in state matters. It makes sense that the issues of slavery and states’ rights were at the center of the next presidential election in 1860.

Civil War Begins

The struggle to define the relationship between the states and the national government was at the center of the creation of Articles of Confederation, the creation of the Constitution, the passage of the Tenth Amendment, and the decisions of numerous Supreme Court cases. With the outbreak of the American Civil War (1861–65), the struggle turned bloody. In four years, over six hundred thousand American soldiers died in a war over the issue of states’ rights and federal power.

Lincoln defeats three Democrats at once

In the election of 1860, Abraham Lincoln (1809–1865) was the presidential candidate for the new Republican Party. (This party was unrelated to Jefferson’s Democratic-Republican Party that was now known simply as the Democratic Party.) Lincoln’s party favored a strong federal government, and he campaigned on an antislavery platform. “I believe,” Lincoln stated, “this government cannot endure permanently half slave and half free.”

By contrast, the Democrats favored states’ rights but had become so divided over the issue of slavery that the party ran two candidates for president. The Constitutional Union Party was made up of former Democrats and offered yet another candidate (see chapter twelve). Helped by the division in the Democratic Party, Lincoln won the election.

Secession

Given the Democrats’ power in Congress, it is unlikely Lincoln could have abolished slavery in the southern states. However, the South had had little luck fighting the federal government’s tariffs (see above) even with southern Democrats in the presidency. The prospect of facing a federal government under an anti-slavery Republican president seemed intolerable. Before Lincoln even took office in March of 1861, seven southern states (led by South Carolina) seceded from the United States and formed the Confederate States of America, or the Confederacy. (Eventually eleven states joined the Confederacy.)

The Confederate states did not consider secession an act of rebellion. In fact, they argued that leaving the United States was well within the states’ legal powers under the Constitution. Jefferson Davis (1808–1889) of Virginia was elected president of the Confederacy. He and other Confederate leaders argued that the states had voluntarily entered the Union when they ratified the Constitution; therefore, it was logical that any state could voluntarily leave it.

Davis also used the Tenth Amendment as a justification for secession. Since the Constitution did not give the federal government any powers to regulate secession (in fact, the Constitution made no mention of secession whatsoever), the Tenth Amendment must grant the power of secession to the states.

Lincoln did not take any direct action against the Confederate states at first. However, he continued to supply federal troops stationed in forts throughout the southern states. When Lincoln sent military supplies to Fort Sumter in South Carolina, the Confederacy called it an act of war. On April 12, 1861, the Confederate Army opened fire on the Union troops at Fort Sumter, and the Civil War began.

During the war, Lincoln took a number of actions that seemed to go far beyond the federal government’s established powers over the states. He used state militias to form an army (without Congress’s approval). He gave federal officers the power to jail suspected Confederacy sympathizers for indefinite periods of time. Most important, perhaps, on September 22, 1862, Lincoln issued an executive order that abolished slavery in the Confederate states effective January 1, 1863.

The Civil War amendments

The Confederate Army surrendered to Union forces on April 9, 1865, which formally ended the Civil War. As one of the conditions for reentering the Union, the southern states were required to ratify the three so-called “Civil War amendments:” the Thirteenth Amendment (see chapter thirteen), the Fourteenth Amendment (see chapter fourteen), and the Fifteenth Amendment (see chapter fifteen).

The Thirteenth Amendment was ratified in 1865. It made slavery illegal throughout the United States “except as punishment for crime.”

The Fourteenth Amendment, was ratified in 1868, contained five sections, of which sections one and five are relevant today.. Section One contains several distinct clauses. The first declared that “all persons born or naturalized in the United States” are citizens of the United States and of the State in which they reside. The privileges and immunities clause prohibits states from making laws that infringe on the “privileges and immunities” that are due to any citizen. The due process and equal protection clauses declare that no state may “deprive any person of life, liberty, or property, without due process of law,” nor deny a person “equal protection of the laws.”

The Fifteenth Amendment, ratified in 1870, gives all adult males the right to vote and declares that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The Civil War amendments represented a decisive change in the relationship between the states and the federal government. The federal government thereafter had powerful constitutional tools for monitoring the actions of state governments on certain issues. The Fourteenth Amendment’s due process and equal protection clauses in particular seemed to prohibit the states from passing any laws that discriminated against its citizens.

The Supreme Court and States’ Rights after the War

At the end of the nineteenth century, the Supreme Court often took a hands-off approach toward state actions, especially in cases that dealt with any sort of discrimination.

The Supreme Court and discrimination cases

The Slaughterhouse Cases of 1873 (first argued in 1872 but reargued in 1873 and decided in 1873), dealt with a Louisiana law that gave one New Orleans company the exclusive right to livestock production in the city. Butchers and livestock producers who did not work for this company sued the state. They argued they were being deprived of equal protection under the law that was guaranteed in the Fourteenth Amendment.

The Supreme Court disagreed. The Court said that a state’s power to regulate its own affairs “was essential to the perfect working of our complex form of government.” The decision in the Slaughterhouse Cases seemed to weaken the Fourteenth Amendment and strengthen the powers reserved to the states by the Tenth Amendment.

The Court also did little to stop states from discriminating on the basis of race or sex, even though the Fourteenth Amendment guaranteed equal protection under the law. In Bradwell v. Illinois (1873), the Court ruled that Illinois had the right to prevent Mrya Bradwell and other women from practicing law. In Pace v. Alabama (1883), the Court allowed states to impose more severe penalties for certain sexual crimes if the parties were of different races.

In Plessy v. Ferguson (1896), the Court found that state laws could treat blacks and whites separately without violating the Fourteenth Amendment’s requirement that states treat all citizens equally. This so-called “separate but equal” decision made it lawful for states to segregate African Americans from European Americans. Segregation was implemented throughout the southern states—in public schools, public transportation, private theaters and restaurants, and even public parks.

The Court and commerce cases

Despite the Supreme Court’s protection of state powers, the federal government’s powers continued to grow. As the nation became more and more industrialized, commercial activity across state lines increased. In 1887, Congress used its powers under the commerce clause to create the Interstate Commerce Commission (ICC). The ICC was a federal agency that actively regulated commercial activity between the states. With federal laws and ICC regulations in place, the federal government’s powers within the states grew rapidly.

But even in commerce cases, the Supreme Court acted to limit federal interference in state matters. In Hammer v. Dagenhart (1918), for example, the Court struck down a federal law that prohibited products made by children from being transported across state lines. Congress had passed the law using its commerce clause powers to regulate interstate commerce. The intent of the law was to discourage child labor. At the time, many young people were put to work in large factories under dangerous and unhealthy conditions.

But the Court ruled that the commerce clause did not give Congress the right to restrict the movement of goods unless the goods themselves were harmful. The Court also ruled that Congress’s power to regulate commerce only covered the buying, trading, and selling of goods—not the manufacturing of those goods. According to the Court, only states could regulate manufacturing issues—including child labor conditions. Until the end of the 1920s, the Court routinely ruled in favor of state powers in commerce cases and against federal regulations. However, over the next four decades, there would be a dramatic swing in the Court’s decisions, first in economic matters and later in the area of civil rights and racial equality.

FDR and the Rapid Expansion of Federal Power

Throughout the 1930s, the United States went through an economically depressed time, known as the Great Depression, which lasted until the early 1940s. This resulted in an enormous economic slowdown affected countries around the world. American businesses suffered great losses. Millions of people were out of work. In the face of these national problems, President Herbert Hoover, who had been elected in 1928, resisted creating new federal programs to improve the situation. Hoover argued that the economy would naturally correct itself.

But in 1932, Americans elected Franklin Delano Roosevelt (1882–1945) as president, largely because he promised a New Deal for Americans. Roosevelt pledged to use the federal government’s powers to bring the nation out of the Depression. In fact, the kinds of federal actions Roosevelt and Congress proposed during his first term as president went far beyond the established limits of federal power at the time.

Under Roosevelt’s New Deal programs, the federal government took almost complete control of the national economy. For instance, the National Industrial Recovery Act (NIRA) declared that a “national emergency” existed that “burdens interstate commerce, affects the public welfare, and undermines the standard of living of the American people.” NIRA gave Roosevelt the power to approve prices and standards of quality within various industries and to grant companies licenses to do business. The purpose of the act was to give the federal government the power to improve industrial working conditions, increase employment rates, control wages and prices, and establish fair business practices.

The president and Congress argued that these powers were implied in the federal government’s power to collect taxes and regulate interstate commerce. However, the Supreme Court did not interpret the Constitution that way. From 1935 to the spring of 1937, the Court heard ten cases concerning New Deal programs. It struck down programs in eight of those cases.

The “Sick Chicken” case.

In Schechter Poultry Corp. v. United States (1935), the Court used the Tenth Amendment to strike down NIRA. A poultry producer had been convicted of selling sick chickens in violation of NIRA regulations. But the Supreme Court ruled that NIRA could not restrict the selling of these chickens. It then struck down the entire act, stating that the nation’s economic hardships “do not create or enlarge constitutional power.” In fact, according to the Court, it was just such “emergency” expansions of federal powers that the Tenth Amendment had been written to prevent.

The Court becomes pro-New Deal

As the Great Depression continued, the Supreme Court began to reverse itself concerning the federal government’s power to regulate business and industry. Roosevelt won a landslide victory in the 1936 presidential election. In 1937, the New Deal’s National Labor Relations Act (NLRA) was involved in three separate cases.

In National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), the Court approved a provision of the NLRA that strengthened the power of labor unions to negotiate contracts with employers. (Unions are made up of workers who negotiate wages and working conditions as a group rather than as individuals.)

In United States v. Darby (1941), the Court used a very broad interpretation of Congress’s commerce clause powers. The Court upheld a set of federal laws that established overtime pay and set minimum wages. Since these issues were associated with the manufacturing of goods, the Court essentially overruled its earlier Hammer v. Dagenhart decision. The Court ruled that the Tenth Amendment did not deprive the national government of its authority to use any “appropriate” means “for the exercise of a granted power.”

The Fourteenth Amendment Eclipses the Tenth Amendment

The Supreme Court’s dramatic reinterpretation of the commerce clause in the 1930s and 1940s allowed the federal government to increase its regulation of state economic behavior. The Court’s equally dramatic reinterpretation of the Fourteenth Amendment in the following decades helped establish the federal government’s power to regulate state civil rights laws.

In the 1940s, the federal government officially objected to segregation laws. The Interstate Commerce Commission (ICC) banned discrimination on trains. The Supreme Court supported the decision in Mitchell v. United States (1941) and in Henderson v. United States (1950). However, the federal government was forced to use its commerce clause powers to attack these laws; state segregation laws that did not affect interstate commerce were protected against federal interference.

But in 1954 the Supreme Court finally gave Congress the tools to fight state-sponsored segregation and racism. In Brown v. Board of Education of Topeka, Kansas (1954), the Supreme Court outlawed racial segregation in public schools. The decision overruled the Court’s 1896 “separate but equal” decision in Plessy v. Ferguson. In Brown, the Court found that “separate but equal” facilities for African Americans did not meet the Fourteenth Amendment’s requirement of equal protection under the law.

By interpreting the Fourteenth Amendment to guarantee equal protection under federal and state laws, the Court gave the federal government the express power to strike down prejudicial state laws and practices. Tenth Amendment questions about the line between federal and state powers were no longer relevant in these cases. Throughout the 1950s and 1960s, the Supreme Court continued to strike down racial segregation laws, as well as other state laws that discriminated on the basis of race. For example, the Court struck down segregation practices in hotels, eating establishments, swimming pools, and prisons.

A New Push for States’ Rights

After the Court’s NLRA decisions in the mid-1930s and the Brown decision in 1954, one might have anticipated that the Tenth Amendment would vanish completely from Supreme Court cases. But in National League of Cities v. Usery (1976), the Tenth Amendment made a surprise comeback in the Supreme Court.

The case involved the Fair Labor Standards Act of 1938, a law that set minimum wages and maximum hours for workers. In 1974, Congress amended the law to cover most state and local government employees. In other words, the federal government was not only regulating the working conditions for private employees in the states, it was now telling the state governments what to pay their own employees.

The Supreme Court struck down the changes to the law. It stated that the Tenth Amendment prevented Congress from impairing “the States’ integrity or their ability to function effectively in a federal system.” In other words, the federal government could not do anything that so blatantly trampled on an accepted state power, such as paying its employees. This was the first time in forty years that the Court had struck down a federal law that had been based on commerce clause powers.

However, the victory for the states was short-lived. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court reversed its earlier decision. Justice Harry Blackmun, who had voted with the majority in National League of Cities changed his mind in Garcia. The Court ruled that the federal government could establish working conditions and wages for state government employees. The Court ruled that it was not up to the courts to limit Congress’s federal commerce powers. Instead, the Supreme Court said that because the federal government was made up of representatives from the states, the states could fight federal regulations directly in Congress. Essentially, the Court left it to the voters to draw the line between the federal and state governments.

The decision in Garcia seemed to be a deathblow to the Tenth Amendment. If it did not contain limits to federal power that were not already found elsewhere in the Constitution, the amendment was apparently unnecessary and useless.

However, the amendment once again surfaced toward the end of the twentieth century. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which made it a federal crime for any person to knowingly possess a firearm within a school zone. Congress passed the act using its commerce clause powers. But the Court ruled that “possession of a gun in a local school zone is in no sense an economic activity that might … affect any sort of interstate commerce.”

The Court stated that such a broad interpretation of the commerce clause would require the Court to conclude that “there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” Lopez was a very significant ruling, as it was the first time in more than sixty years that the Court had invalidated a law as exceeding Congress’s powers under the commerce clause. Traditionally, the Court had upheld Congress’s powers under the commerce clause. For instance, the Court ruled in the 1960s that the commerce clause gave Congress the power to regulate restaurants that discriminated on the basis of race.

Printz v. United States (1997) also relied on Tenth Amendment principles to restrict federal powers. The Brady Handgun Violence Prevention Act was a federal law that regulated the sale of handguns. The Court struck down a part of the law that required state officers to perform background checks on prospective handgun purchasers. It ruled that the Constitution does not permit Congress to force state officers to enforce federal laws.

However, in Gonzalez v. Raich (2005), the U.S. Supreme Court ruled that a federal drug prevention law could be applied in spite of a California law that provided for medicinal use of marijuana. The case involved a California woman who used marijuana to ease the pain associated with the treatment she received for her brain tumor. Still, the majority of the Court reasoned that Congress had broad power to regulate drug use and that power was not trumped by the California law.

All the above decisions show that the Tenth Amendment is a crucial part of the constitutional concept of federalism, the proper division of power between the federal government and respective state governments. One of the primary legacies of the Supreme Court under the leadership of Chief Justice William Rehnquist (chief justice from 1986–2005) was a fundamental commitment to a different way of thinking about federalism. Rehnquist was the author of the National League of Cities opinion when he was an associate justice and the Lopez decision when he was chief justice. He believed that the federal government should not intrude too much on states and state laws. In essence, Rehnquist sought to breathe more vigor into the Tenth Amendment.

A Constant Reminder of Dual Sovereignty

The Tenth Amendment was created to keep the national government from unduly expanding its powers. Since the time when the amendment was ratified, the federal government has grown enormously. Major events in the nation’s history have played a role in the federal government growth. Such events include the Civil War, the Great Depression, and the civil rights movement, along with changes in the way the Supreme Court has interpreted the Constitution.

In the early twenty-first century, state governments continue to be an important and powerful part of the U.S. system of government. Issues over where to draw the line between federal and state power continue to arise. For instance, in the late 1990s many states legalized marijuana for persons suffering from certain diseases. Such laws conflicted with federal laws that outlawed such uses of the drug. President Bill Clinton (1946–) vowed that the U.S. Justice Department would try these state laws in court. The Tenth Amendment played a role in subsequent disputes on this subject and others.

At the very least, the Tenth Amendment serves as a reminder that the U.S. system of government is a dual sovereignty. The federal government’s powers are limited to those expressly listed or implied in the Constitution. The states may claim all other governmental powers for themselves.

FOR MORE INFORMATION

Books

Hudson, David L. Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, CT: Praeger, 2006.

Killenbeck, Mark. The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues. Lanham, MD: Rowan and Littlefield, 2001.

Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.

Wootton, David, ed. The Essential Federalist and Anti-Federalist Papers. By Alexander Hamilton, James Madison, and John Jay. Indianapolis, IN: Hackett, 2003.

Periodicals

Calabresi, Steven G. “‘The Era of Big Government Is Over.’” Stanford Law Review 50 (February 1998): 1015, 1019–21.

Marks, Chris. “U.S. Term Limits, Inc. v. Thornton and United States v. Lopez: The Supreme Court Resuscitates the Tenth Amendment.” University of Colorado Law Review 68 (spring 1997): 541–60.

Vile, John R. “Truism, Tautology or Vital Principle? The Tenth Amendment Since United States v. Darby.” Cumberland Law Review 27 (1996–97): 445–50.