Civic Literacy Curriculum

Background

The Tenth Amendment to the Constitution, like the Ninth Amendment, is the part of the Bill of Rights that reiterates that the federal government is limited to the powers granted to it by the Constitution, and that all other powers remain with the states and their people. In other words, it describes both the limited scope of the federal government, on the one hand, and on the other, the wide authority of the states to regulate the health, welfare, safety, and morals of their people (also known as the states’ police power).

The members of the Constitutional Convention had originally argued that a Bill of Rights was unnecessary because of the doctrine of “enumerated powers.” (This doctrine means the federal government can only do what the Constitution specifically allows it to do.) For example, one did not need to specifically protect freedom of speech when the federal government had not been given explicit authority to restrict speech in the first place. Critics nonetheless demanded a Bill of Rights as an additional check and security before they would ratify the Constitution.

As a result, the constitutional ratifying conventions in most states demanded an amendment or amendments clarifying the limited power of the federal government to protect states’ sovereignty, and several insisted on specific individual liberties as well. While many proposed amendments were ultimately rejected, basic structural concerns were addressed by what became the Ninth and Tenth Amendments. The Tenth Amendment reiterated that the federal government’s powers were limited to those granted by the Constitution. The Ninth Amendment similarly held that a list of civil liberties—what the federal government was specifically forbidden from doing- did not imply the federal government could do everything else. Both of these were already built into the logic of Article I, Section 1 of the Constitution, which gave Congress “all legislative powers herein granted”—in other words, only those that followed in the text.

The Tenth Amendment aims to protect the diversity and localism that come from allowing different states to have their own policies, while reinforcing liberty by confining the federal government to a limited set of powers. (It should be reiterated that the Tenth Amendment operates in the space where the federal government has not been given authority. It does not provide a state with the ability to interfere with the powers granted to the federal government. Nor does it allow states to violate individual liberties guaranteed by the Constitution, such as the Bill of Rights or the guarantee of equal protection of the laws in the Fourteenth Amendment.)

Today, interest in the Tenth Amendment and decentralized federalism is often associated with political conservatism, but this was not true for most of American history. As former slave turned political thinker Frederick Douglass observed in 1866, “the right of each State to control its own local affairs [was] an idea…more deeply rooted in the minds of men of all sections of the country than perhaps any one other political idea”.

Before the 1930s, progressives—including then-New York Governor Franklin Roosevelt-- were among federalism’s most zealous defenders, as they saw it as a way for states to protect the economic welfare of their citizens. As the Populist Governor of Kansas Lorenzo Lewelling seethed in 1895 when federal courts blocked a Kansas railroad law, “Are we to understand, then, that the states are no longer sovereign as to their own territory and their own internal affairs? Are they to the government at Washington only as wards to a city? ….The doctrine of internal state sovereignty was not invalidated [by the Civil War.]”

Over the course of the 20th century several of the federal government’s enumerated powers were re-interpreted to be much more expansive than they had been before. This was especially true after Franklin Roosevelt’s shift on questions of federal power, as he concluded that the federal government needed to play a much more active role. The result was that the Supreme Court narrowed the scope of authority that earlier justices believed the Tenth Amendment reserved to the states.

Most prominently, the Constitution gives the power to regulate interstate commerce, which as James Madison noted in Federalist 45 had been something that even constitutional skeptics fearful of centralized power did not find alarming: “an addition which few oppose, and from which no apprehensions are entertained.” In the 1930s and 1940s, that power was reinterpreted to include the power to regulate not just interstate commerce itself but anything that even indirectly, and in the aggregate, affected interstate commerce-- even if that commerce actually took place only within a single state. This power possibly extended federal authority to control even non-commercial activity. However, the Supreme Court, especially under Chief Justice William Rehnquist, subsequently drew the line in declaring that even a much more expansive reading of the interstate commerce clause must still confine the federal government to regulating fundamentally commercial activity.

Similarly, the Tenth Amendment has also been used to ensure that state law enforcement officers cannot be forced to implement federal law. One of the most important changes from the Articles of Confederation to the Constitution was that the Constitution gave the federal government its own enforcement machinery. The Court has thus concluded that the states could not be “commandeered” to implement federal laws. In other words, whatever layer of government made the law is responsible for enforcing it—and whatever layer is making and enforcing the law is accountable to the voters for it. Thus, the federal government cannot make states enforce federal gun laws, federal marijuana laws, or federal immigration laws, to use three recent examples (across the ideological spectrum).