The 10th Amendment

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The 10th Amendment to the United States Constitution is a guarantee of States' rights. The Constitution designed the federal government to be a government of limited and enumerated, or listed, powers. This means that the federal government only has powers over the things that are specifically given to it in the Constitution. All other powers are reserved to the States. The 10th Amendment in the Bill of Rights reads like this:

"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."

Purpose of the 10th Amendment

Why did the Founding Fathers put the 10th Amendment into the Bill of Rights? The explanation is that they did not want the central government to become too powerful. They didn't want a government that was located far away from their homes dictating how they lived their daily lives. They wanted as much power as possible to be retained in their local state legislatures.

Today, the 10th Amendment idea of limiting the federal government's power has been severely weakened by many years of gradual changes in the view of what is and what is not a federal power. The main culprits in this weakening of the 10th Amendment have been the Supreme Court and Congress itself.

History of the 10th Amendment

To better understand the modern day position of the 10th Amendment in our culture, we have to look back at the history of this Amendment and the reasons the Founding Fathers added it in the Bill of Rights.

If you remember your history, you will remember that during the Revolutionary War, on July 2, 1776, the thirteen colonies all declared their independence from Great Britain at once. The day the declaration was voted upon and passed was July 2, not July 4 as most people think. The decision was publicly announced for the first time on July 4 and that is why Americans celebrate independence on that day. You can learn more about the Declaration of Independence here.

Richard Henry Lee

As soon as the thirteen colonies declared independence, they became thirteen individual sovereign states or countries. Each state created its own new government. They had no legal ties to the other states except in the few arrangements they had made to cooperate together in their war against Great Britain. It would be as if the United States, Canada, Mexico, England and France all got together as a group today and declared war on China. The leaders of these five countries would get together and make agreements about who would do what in the war and how they would cooperate. This wouldn't make them all one great big country. They would still be five separate, but cooperating countries.

That was the state of things after July 4, 1776. It should be stated that the new states were already studying ways to formally join themselves together at this time, but they hadn't done it yet. On the same day a declaration of independence from Britain was proposed to Congress by Richard Henry Lee of Virginia, which was June 6, 1776, he also proposed "That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation." The Congress immediately put together an exploratory committee to consider this issue. You can read the Lee Resolution here, in which Richard Henry Lee made his proposal.

10th Amendment History -
The Articles of Confederation

This committee studied how the colonies might join together and submitted its proposal to Congress in the summer of 1777. The plan was discussed and revised and formally adopted by Congress on November 15, 1777. It is known as the Articles of Confederation. This did not make the Articles law, though. Each state had to individually choose whether or not it wanted to be a part of this new union. Because of the long lasting Revolutionary War and other issues, the final state, Maryland, did not ratify the Articles of Confederation until March 1, 1781. This is the date the thirteen states formally became one nation for the first time.

Original Bill of Rights
Click to enlarge
Original Bill of Rights

Part of the reason that it took so long for the states to ratify the Articles of Confederation was the huge fear that the American population had of giving up their local rights to a new national government. They were fighting a war to save themselves from a tyrannical government. They wanted to be sure that they did not create a new one in its place.

One of the main arguments at this time was a states' rights vs. national rights argument. That is, which rights would be given up to the federal government and which rights would the states retain for themselves? Most people wanted most rights to stay in the hands of local people, not in the hands of a far away central government. Remember that each state was a sovereign nation at this point. In creating a new government over them, they would be surrendering certain of their powers to the new government.

To help prevent the federal government from taking too much power that it was not granted, the Founding Fathers included this statement in Article II of the Articles of Confederation:

"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."

The Founders wanted the central government to have very limited powers and the Articles of Confederation did just that. In fact, the government proved to be so weak that it could barely function. It had no power to collect taxes or force the delegates to attend. That's why they later dissolved this government and created the Constitution of the United States in its place. The Constitution still strictly limited what the federal government could do, but with enough power, this time, to sustain itself. That is the document that our government is still organized around. You can read the Articles of Confederation here and you can read the United States Constitution here.

10th Amendment -
Ratifying the Constitution

After the Constitution was written in 1789, the States had to ratify it for it to become law. There was much discussion about the merits and weaknesses of the Constitution. Again, the States' rights issue came up. Many people were very concerned that the Constitution took away too much power from the States.

The Federalist party wanted to have a strong central government so it would have enough power to actually do things, unlike the government under the Articles of Confederation. George Washington, James Madison, Alexander Hamilton and John Adams were Federalists.

Patrick Henry
Click to enlarge
Patrick Henry

The Anti-Federalist party wanted more power to stay with the states to purposefully weaken the central government. Thomas Jefferson, Patrick Henry and George Mason were Anti-Federalists.

The Anti-Federalists believed the Constitution did not spell out specifically that certain natural rights of the people would be protected from intrusion by the government - rights such as freedom of speech, freedom of religion and freedom from cruel and unusual punishment. They wanted these things specifically added to the Constitution.

The Federalists believed the Constitution did not grant the federal government power over any of these things anyway, because the Constitution only grants certain specifically mentioned powers to it. Instead, they believed that adding specific mention of specific rights would actually be a danger to the people's rights. Why? Because they thought that if the Constitution listed certain rights and said those rights were protected, it would imply that any rights not listed, were not protected. Later, the Ninth Amendment was added to the Constitution to deal with this potential problem. It says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

This means that just because a right is not mentioned doesn't mean that it isn't protected from intrusion by the government. So, they are saying that there are natural rights that every human being has, which are too many to list. The government cannot meddle in any those rights, even if they're not specifically mentioned.

10th Amendment - The Compromise

Ratification of the Constitution had fallen into jeopardy. It was unclear whether or not enough states would choose to ratify it based on this issue of not wanting to make the federal government too powerful and protecting basic natural rights.

James Madison

James Madison

The Federalists in the State of Massachusetts came up with the solution, which is known as the Massachusetts Compromise. They suggested that if the Anti-Federalists would go ahead and vote yes to ratify the Constitution, that they would send a list of proposed amendments to to the First Congress, who could then discuss which amendments to add.

This proposal persuaded the Anti-federalists all over the country and the remaining states voted to ratify. The new government began its operations on March 4, 1789. On June 8, James Madison proposed a list of about twenty amendments, which he had carefully chosen from the list of amendments submitted by the states. One of these was, of course, what became the 10th Amendment. The Congress voted to accept twelve of these amendments on September 25. They passed them on to the states and with Virginia's vote for ratification, ten of these twelve amendments became law on December 15, 1791. These first ten amendments are today known as the Bill of Rights. You can read more about the history of the Bill of Rights here.

It should be noted that the language of the 10th Amendment is very similar to the wording of the article in the Articles of Confederation dealing with the same subject. So this idea of reserving to the states any power that was not specifically delegated to the federal government, had remained an important issue to the Founders for many years.

10th Amendment in everyday life

The 10th Amendment was rarely referred to in any court cases for the first 150 years after it was adopted. In the early days of the country, everyone alive had first hand memories of what it was like to live under a tyrannical government, including the newly elected officials. They were not interested in creating another tyranny.

Franklin D. Roosevelt
President Franklin
D. Roosevelt

This all changed in the last seventy to eighty years, starting with President Franklin D. Roosevelt's "New Deal" programs. The Great Depression had stalled the US economy. Many people had lost their jobs and many could not find employment at all. With President Roosevelt at the lead, Congress created many new programs designed to get the economy rolling again. Many people became employees of the Federal government through its many new work programs around the country.

Because of the hard times, people were looking for hope and they began to look to the government to play a bigger role in their lives than it had before. The government consequently stepped in and began to take that bigger role. Americans left behind the 10th Amendment's idea of a limited role for government.

Today the government regulates agriculture, the manufacturing industry, labor unions and many things that used to be controlled by the states. It has done so primarily through the use of three distinct clauses of the Constitution - the Commerce Clause, the Taxing and Spending Clause and the Necessary and Proper Clause. All of these things are found in the Constitution's Article I, Section 8, which defines the powers of Congress. You can read Article I, Section 8 of the Constitution here.

First Page of the US Constitution
Click to enlarge
First page of the
Constitution of the
United States

The Commerce Clause - "The Congress shall have power... To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes."

This clause says Congress can regulate interstate and foreign commerce. The Congress today, though, regulates many forms of commerce that are only intrastate, meaning only within state lines. Why? The Supreme Court has allowed it, and so have the people.

The Taxing and Spending Clause - "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

This clause gives Congress power to tax the people and then use the taxes in the way Congress sees fit. Often the Congress controls the states by putting stipulations on any money that it might give to the states. For example, the national legal drinking age of 21 was imposed on the states by the Federal government by withholding highway construction funds from any state that would not comply with Congress' wishes to have the legal drinking age fixed at 21.

The Necessary and Proper Clause - "The Congress shall have power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

This clause gives Congress power to make any new laws that are "necessary and proper" for it to carry out its business. This is often used as a carte blanche by Congress to delve into anything it wants to. The Supreme Court has unfortunately gone along with this, as have the American people, and allowed Congress to take a much greater degree of control in their lives than was intended by the founders.

Read this statement by James Madison from The Federalist, No. 45:

"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. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce;... The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state."

The Articles of Confederation and the Constitution both had clauses defining what was a federal power and what was a state power, but there was one significant difference. The Articles of Confederation had said, "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."

The Constitution, in the Necessary and Proper Clause, said, "The Congress shall have power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." This clause gives Congress the power to make laws about things that are not specifically mentioned in the Constitution. The Founders who wrote the Constitution left out the idea from the Articles that the Congress' duties were defined by those things expressly written in the Constitution.

Likewise, when the First Congress wrote the Bill of Rights, they said in the 10th Amendment that, "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." Again, they left out the word expressly. If they had said, "The powers expressly delegated to the US by the Constitution..." they would have amended the Necessary and Proper Clause, but they didn't. So, apparently, they were anticipating the idea that some issues might come up, that were unforeseen, that Congress would need to regulate and they wanted to give Congress the authority to do it. Was this a mistake? Did the Necessary and Proper Clause conflict with the 10th Amendment? Should the founders have only given Congress expressly written powers? If they had, maybe it would not have been so easy for Congress to take so much power from the states.

10th Amendment Court Cases

Wheat farm

In a 1942 case called Wickard vs. Filburn, the Supreme Court ruled that the Congress could regulate wheat production on a family farm that was intended for use strictly on that farm, such as for personal consumption or animal fodder. The Court's reasoning was this: Congress mandated production quotas on wheat farmers to regulate the price and keep it steady. It did this under authority of the Commerce Clause which gave it permission to regulate interstate trade. Of course, a lot of wheat crosses state lines. If an individual would produce a substantial amount of wheat on his own farm and use it for himself, he would not be buying wheat on the market for his own use, or selling the wheat he grew on the market. Both of these things would affect the price of wheat on the market, and therefore, Congress had the authority to regulate it.

A 1985 case called Garcia vs. San Antonio Metropolitan Transit Authority posed the question of whether or not the State of Texas could be forced to pay its employees according to Federal minimum wage guidelines. The state argued that this was a state matter that the Federal government had no jurisdiction over. The Court disagreed and said that the guidelines were not "destructive of state sovereignty or violative of any constitutional provision" so they were not in violation of the 10th Amendment.

In South Dakota vs. Dole, 1987, the Supreme Court allowed the Federal government to dictate the legal drinking age to the states. It did so through the Taxing and Spending Clause. The Federal government had passed a law suspending 10% of highway funds from any state that refused to pass a law setting the legal drinking age at 21. South Dakota sued the Federal government, naming Elizabeth Dole as the defendant because she was then the Secretary of Transportation.

Chief Justice William Rehnquist
Chief Justice
William Rehnquist

The Supreme Court ruled 7/2 in favor of the Federal government. Chief Justice William H. Rehnquist said in his decision that the Federal government had acted within in the guidelines of its authority under the Taxing and Spending Clause. He said there are four guidelines that would determine whether or not Congress has power under this clause:

  1. The condition must promote "the general welfare;"
  2. The condition must be unambiguous;
  3. The condition should relate "to the federal interest in particular national projects or programs;" and
  4. Other constitutional provisions may supersede conditional grants.

The 10th Amendment bars the Federal government from taking powers away from the States that are reserved to them. In requiring that guidelines be met, such as setting the drinking age, the Congress has not forced the state to do anything, only to suggest it. By this reasoning Congress has persuaded the States to change many of their laws to match whatever the Congress wishes.

In recent years, the Court has used the 10th Amendment to prevent the Federal government from usurping State power in only one type of case - cases where the government's activity would commandeer the use of state resources to further its own purposes.

For example, in New York vs. United States, 1992, the Court prevented the Congress from requiring the States to take title to certain hazardous radioactive waste materials and be liable for any claims related to the waste, if the state did not follow Congress' guidelines regarding how to dispose of them. The Court ruled that the Congress had no constitutional authority to force the state to do this according to the 10th Amendment, which barred the Federal government from taking away powers of the State. In other words, the Congress could not dictate what the state did with its money or employees or resources. Forcing the state to take control of this waste would have done just that.

Handgun

In another case, called Printz vs. United States, 1997, the Supreme Court ruled that the Congress could not force the States to conduct criminal background checks on gun purchasers. This would have forced the state to use its own resources to accomplish the Federal mandate. This was also barred by the 10th Amendment.

Most cases in recent years have affirmed Congressional power based on the three clauses mentioned above. However, in 1995, the United States vs. Lopez case, was an exception. In this case the Supreme Court ruled that the Gun-Free School Zones Act of 1990, which forbade people from bringing guns into zones around schools, was unconstitutional because Congress had exceeded its authority granted in the Commerce Clause. Their reasoning was that the Commerce Clause gives Congress authority to regulate interstate commerce and not the region directly around local schools. The government contended that it had the right to regulate in this case because gun trade is an interstate activity, but the Court ruled that this was not an economic issue and that the law was, therefore, a violation of the 10th Amendment.

Books about the 10th Amendment


Amendments:

Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following articles:

Last updated 7/30/12

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