TENTH AMENDMENT TO THE CONSTITUTIONOF UNITED STATES
One of the fundamentals of true federalism is the decentralization of executive powers, and this was pivotal in the formation of the republic and the Constitutional Convention that produced the U.S. Constitution on September 17, 1787. The founding fathers in their wisdom believed any government afforded too much power would in most cases abuse the power and oppress people. Inferences were drawn from their experiences with England which had infused a phobia of the concentrated political powers of a monarchy. To prevent tyranny, the constitution adopts a system of balanced separation of powers that is enforced through adequate checks and balances.
Overtime, a number of improvements have been done on the constitution since its ratification in 1789. One of these is the Tenth Amendment to the United States Constitution which states in full 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.”
The amendment was ratified in 1791 and forms part of the Bills of Rights. It seeks to limit the expansionary tendencies of government at the centre which supports the original intent of the framers of the constitution by succinctly stating the extent of the powers of the federal government not going beyond the powers delegated to it by the United States Constitution. All other powers are reserved exclusively for the states or the people.
The amendment could be seen in part as a direct response to an earlier provision of the Articles of Confederation stating that
“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 proposal for the Tenth amendment was made by South Carolina’s Thomas Tudor Tucker and Massachusetts’ Elbridge Gerry at separate times, with the argument that federal government too should be limited to powers expressly delegated by the constitution. James Madison however opposed the amendments on the grounds the Government cannot be confined to the exercise of express powers thereby denying implied powers. In the final ratified form drafted by Connecticut Representative, Roger Sherman, the word “expressly” was omitted to allow for a wider interpretation of the powers implied.
To guide the proper comprehension of the Tenth Amendment within the ambits of the law and ensure that both States and the Federal government do not wilful circumvention of the provisions, three categories of political powers are granted under amendment. This include expressed or enumerated powers, reserved powers, and concurrent powers.
Expressed or Enumerated Powers: These are powers granted to the U.S. Congress mainly found in Article I, Section 8 of the US Constitution. Examples of the expressed powers include the power to coin and print money, regulate foreign and interstate commerce, declare war, grant patents and copyrights, establish Post Offices, and more.
Reserved Powers: Powers not explicitly granted to the federal government in the Constitution are reserved to the states under the 10th Amendment. Examples of reserved powers include issuing licenses (drivers, hunting, business, marriage, etc.), establishing local governments, conducting elections, providing local police forces, setting smoking and drinking ages, and ratifying amendments to the U.S. Constitution.
Concurrent Powers are powers are those political powers shared by both the federal government and the state governments. The concept of concurrent powers responds to the fact that many actions are necessary to serve the people at both the federal and state levels. Most notably, the power to impose and collect taxes is needed in order to raise money needed to provide police and fire departments, and to maintain highways, parks, and other public facilities.
THE INTENT OF THE FRAMERS
The underlying intent of the writers can be drawn from the Treaty of Paris and Articles of Confederation. The Treaty of Paris stated that the 13 former colonies were “free sovereign and independent states.” The Articles of Confederation also adopted this idea as the second article clearly states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”
This thinking also informed the Compact Theory adopted by the Founding Fathers on which the country was founded. The purpose of the 10th Amendment then is to define the establishment and division of power between the Federal government and state governments. This amendment also protects these powers from both entities. This amendment was used to define the federal taxing power, federal police power, and federal regulations’
It also seeks to succinctly make people understand that the powers not specifically granted to the United States by the document were retained by the states or the public.
This fact, that the amendment “added nothing to the Constitution as originally ratified” was confirmed by the Supreme Court in the case of United States v. Sprague (1931) who declared it a mere truism.
It was also believed that the 10th Amendment would allay the people’s fear that the new national government might either try to apply powers not listed in the Constitution or to limit the states’ ability to regulate their own internal affairs as they had always done in the past.
The main protagonist in the Tenth Amendment clause, James Madison later noted that the Tenth was “superfluous” or as is noted in our day a “tautology”, but I am reminded of my experiences with my own children.
Sometimes when they erred and I corrected them they would mumble an acknowledgement while trying to quickly move on. I would gently place my hand under their chin and say,
“Look me in the eye and tell me it was wrong and you promise not to do it again.”
They had already said as much but I wanted to be certain there was no misunderstanding.
The states in this case were looking the newly formed federal government in the eye and reiterating the limit of its powers while also putting a high level of responsibilities with the people.
There was however undisputable understanding until the Federal government found a back door to increase powers via the Supreme Court.
ORIGINAL EFFECTS ON BUSINESS
Since the motive behind the Tenth was to clearly reiterate the powers delegated to the Federal government within the ambit of the Constitution, the effect of this on business cannot be discussed without touching on the Commerce Clause which describes the enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3).
The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The constitutional interpretation of the clause for the best part of the 1800s supported and pushed federal might’s involvement in domestic economy higher.
An example was the case of Gibbons v. Ogden (1824) in which the Chief Justice John Marshall ruled that the power to regulate interstate commerce also included the power to regulate interstate navigation: “Commerce, undoubtedly is traffic, but it is something more—it is intercourse … A power to regulate navigation is as expressly granted, as if that term had been added to the word ‘commerce’ … The power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines.” The Court’s decision contains language supporting one important line of Commerce Clause jurisprudence, the idea that the electoral process of representative government represents the primary limitation on the exercise of the Commerce Clause powers.
In Gibbons, the Court struck down New York’s attempt to grant a steamboat monopoly to Robert Fulton, which he had then ultimately franchised to Ogden. Ogden claimed river traffic was not “commerce” under the Commerce Clause and further that Congress could not interfere with New York State’s grant of an exclusive monopoly within its own borders. Ogden’s assertion was untenable: he contended New York could control river traffic within New York all the way to the border with New Jersey, that New Jersey could control river traffic within New Jersey all the way to the border with New York, leaving Congress with the power to control the traffic as it crossed the state line.
Thus, Ogden contended, Congress could not invalidate his monopoly as long as he only transported passengers within New York. The Supreme Court, however, found that Congress could invalidate his monopoly since it was operational on an interstate channel of navigation.
In its decision, the Court assumed interstate commerce required movement of the subject of regulation across state borders.
Recent confirmation of the interpretation was also during the second tenure of Franklin Roosevelt. He suggested minimum wage law that was approved by the Supreme Court with a 5-4 ruling. One of the conservative justices argued that it was a constitutional use of the power to regulate interstate commerce and that the minimum wage law was not a 10th Amendment violating overreach of federal power.
Since that breakthrough, federal power has extended into many areas of the economy and has been interpreted to authorize many laws whose real purpose was not truly to regulate commerce between the states but for which it was possible to point out some way in which the effect of the law would or could affect commerce.
A typical example was when the Supreme Court struck down California’s attempt to legalize marijuana for medical uses and upheld the federal government’s right to outlaw marijuana nationally (even though the California law affected marijuana that would be cultivated and consumed in California and therefore would not directly be part of interstate commerce). The logic was that legalizing marijuana in one state would affect the national market for marijuana and therefore federal pre-emption of a state’s right to decide what drugs are legal within that state was permissible as a regulation of interstate commerce.
Justice Clarence Thomas, who disagreed with the above ruling, wrote that if Congress can use its interstate commerce powers to regulate a commodity that crossed no state lines “then it can regulate virtually anything — and the federal Government is no longer one of limited and enumerated powers.” This singular dissent by Clarence Thomas sparked a wave of awareness of people to the realization that an important constitutional principle has been improperly interpreted out of the Constitution.
CHANGES AND EFFECTS ON BUSINESS TODAY
Since that 1937 reversal by the Supreme Court (which has long gone under the cute moniker “the switch in time that saved nine”), the 10th Amendment has seldom been upheld as a limitation as the power of the federal government.
There were really two cases of any consequence in which a 10th Amendment challenge prevailed. In New York vs. the United States (1992), federal government’s incentives was explained as compelling the New York Legislature to enact laws that the feds preferred for the handling of waste from nuclear power plants. In the second, Printz vs. the United States (1997), the Supreme Court struck down certain portions of Brady Handgun Violence Prevention Act because the act required local law enforcement officials to conduct background checks when someone tried to buy a handgun. The key was not the gun rights issues (and most of the act remains in place), but the fact that the feds were treating state and local officials as arms of the federal government. The key word here is “commandeer.”
The current reading of the 10th Amendment is that it bars the federal government from “commandeering” either the state legislature (forcing it to enact particular laws) or the state/local executive branches (forcing its officials to enforce policy). Essentially, the Supreme Court is saying that Congress cannot tell state and local officials how to do their jobs.
Federal has however found ways of arm-twisting the States by providing financial incentives to encourage the states to implement what the feds think should be national policy, even in areas that are clearly within the states’ jurisdiction.
The modern reading of the 10th Amendment is not one of those issues that separate the liberal and conservative wings of the current court and the rest of the court seems to have accepted that only by “commandeering” state officials can the Congress overstep its 10th Amendment boundaries.
THE ORIGINAL TENTH AND THE PRESENT REALITY
The basic promise, made at the time of the framing and ratification of the Constitution, has been made to disappear. We need to look back and look at the coverage of the judicial interpretation of the amendment.
The Supreme Court has since 1992, declared laws unconstitutional for violating the Tenth Amendment when the federal government compelled the states to enforce federal statutes.
In 1992, in New York v. United States the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. by attaching conditions to the receipt of federal funds using the commerce power.ly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.
In 2018, in Murphy v. National Collegiate Athletic Association, the Supreme Court ruled that the Professional and Amateur Sports Protection Act of 1992, which prohibited states that banned sports betting when the law was enacted from legalizing it, violated the anti-commandeering doctrine and invalided the entire law. The Court ruled that the anti-commandeering doctrine applied to congressional attempts to prevent the states from taking a certain action as much as it applied in New York and Printz to Congress requiring states to enforce federal law.
In the 20th century, the Commerce Clause has become one of the most frequently-used sources of Congress’s power, and thus its interpretation is very important in determining the allowable scope of federal government. Complex economic challenges arising from the Great Depression triggered a re-evaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.
In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for “home consumption” on a farm – that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer’s growing “his own wheat” can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.
Most recently, in Gonzales v. Raich (2005) a California woman sued the Drug Enforcement Administration after her medical cannabis crop was seized and destroyed by federal agents. Medical cannabis was explicitly made legal under California state law by Proposition 215, despite cannabis being prohibited at the federal level by the Controlled Substances Act. Even though the woman grew cannabis strictly for her own consumption and never sold any, the Supreme Court stated that growing one’s own cannabis affects the interstate market of cannabis. The theory was that the cannabis could enter the stream of interstate commerce, even if it clearly wasn’t grown for that purpose and that was unlikely ever to happen (the same reasoning as in Wickard v. Filburn). It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.
Cooper v. Aaron, a 1958 Supreme Court case that dealt with states’ rights and the Tenth Amendment, came about when conflicts arose in direct response to the ruling of another landmark case, Brown v. Board of Education. In 1954, the Supreme Court unanimously decided on Brown v. Board of Education declaring racial segregation of children in public schools unconstitutional. Following Brown, the court ordered district courts and school boards to proceed with desegregation “with all deliberate speed.” In other words, the Court’s decision not only ruled segregation as an unconstitutional and illegal practice, but also prompted all public schools to open its doors to black students and provide access to facilities to white and black students equally. This ruling quickly spurred upsetting conflicts between those trying to enforce the ruling and those refusing to abide by it.
Among those opposing the decision and all efforts of desegregation ordered by the Court was the Governor of Arkansas, Orval Faubus. In Little Rock, Arkansas, a group of nine black students known as the “Little Rock Nine” was to attend the previously all-white Central High School under the school board’s attempt to follow the order of Brown. However, the tension between the state legislature and the Governor versus the Supreme Court and the federal government became severe when Governor Faubus ordered the National Guard to prevent the nine black students from entering the high school and President Eisenhower responded by sending federal troops to escort them in. Because the Little Rock school board implementing the desegregation program fell under both the state and federal jurisdiction, it sought to alleviate itself from this distraught situation through legal means.
Five months after the integration crisis happened, the school board filed suit in the United States District Court of the Eastern District of Arkansas requesting a two and a half year delay in implementing desegregation. Although the district court granted the relief, the United States Court of Appeals for the Eighth Circuit reversed the district court’s decision on August 18, 1958, and stayed its mandate pending appeal to the supreme Court. By this time, the incident had evolved into a national issue: it had become a debate on not only racism and segregation but also states’ rights and the Tenth Amendment.
The Court, citing first, the Supremacy Clause of Article VI declaring the Constitution as the supreme law of the land and second, the Marbury v. Madison decision asserting the Court as the supreme interpreter of the Constitution as evidence of their superior authority, reaffirmed the decision of Brown and held that the states must abide by the Court’s decisions despite their disagreement with them. Expectedly, many states’ right advocates and state officials criticized the ruling as an attack on the
The Tenth Amendment that reserves the states’ right to resist the implementation of federal law or the Federal Constitution. Moreover, they claimed the Court’s decision on Cooper as being inconsistent with the constitutional vision of the Framers.
The federal system limits the ability of the federal government to use state governments as an instrument of the national government, as held in Printz v. United States.
For this reason, Congress often seeks to exercise its powers by encouraging States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device was to condition allocation of federal funding where certain state laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide state 55 mph (90 km/h) speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the states would lose highway funding if they refused to pass such laws (though the national speed limit has since been repealed).
In 2012, in National Federation of Independent Business v. Sebelius, the Court ruled that the Patient Protection and Affordable Care Act (commonly referred to as the ACA or Obamacare) unconstitutionally coerced the states to expand Medicaid. The Court classified the ACA’s language as coercive because it effectively forced States to join the federal program by conditioning the continued provision of Medicaid funds on states agreeing to materially alter Medicaid eligibility to include all individuals who fell below 133% of the poverty line.
But given the power of precedent and powerful weaves of history that have expanded the federal government’s role in modern U.S. society, the 10th Amendment movement would have a long way to go to have any impact on this.
10th Amendment: History and Purpose
MINNPOST: Our latest constitutional debate: What’s the 10th Amendment mean?
ThoughtCo: The 10th Amendment: Text, Origins, and Meaning