The 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.

—Charles J. Cooper

Introduction

The Tenth Amendment expresses the fundamental principle that undergirds the entire plan of the original Constitution. As James Madison explained in Federalist No. 39, the national government possesses only those powers delegated to it and “leaves to the several States a residuary and inviolable sovereignty over all other objects.” The Constitution was “in strictness, neither a national nor a federal Constitution, but a composition of both.” Framed by the First Congress in response to demands by state ratifying conventions for a bill of rights, the Tenth Amendment’s central purpose was to establish a rule of constitutional construction reaffirming the nature of the federal system.

The Constitutional Convention

After the Revolution, the Articles of Confederation created a mere “league of friendship” in which “[e]ach state retain[ed] its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which [was] not by this confederation expressly delegated to the United States, in Congress assembled.”¹ Over time, it became increasingly clear that this anemic government was unsustainable.

In May 1787, delegates from the states gathered in Philadelphia for the purpose of strengthening the Union. The delegates to the Constitutional Convention were divided, however, over how strong the national government should be. They were wary of centralized government and protective of the sovereignty of their individual states. At the same time, the failure of the Articles of Confederation to “insure domestic tranquility” and other basic government functions revealed the necessity of vesting greater authority in a national government independent of the states.

The Constitution therefore created a novel system of dual sovereignty. Each government possessed direct authority over the people. The national government exercised its limited and enumerated powers over all persons. At the same time, the states exercised their residual sovereign power over their residents. In addition, the states were made a constituency within the national government’s structure. The state legislatures chose Senators, determined how presidential electors should be chosen, and defined who would be eligible to vote for members of the House of Representatives. Critical to this system of dual sovereignty were the limitations on the national government inherent in the scheme of enumerated federal powers. This enumeration of powers allowed the federal government to operate only within defined spheres of jurisdiction where it is acknowledged to be supreme.

During the Constitutional Convention, certain delegates argued that the federal government needed a bill of rights. George Mason was perhaps the most adamant in his insistence that the Constitution was deficient without a bill of rights. James Madison described Mason’s work in an October 24, 1787, letter to Thomas Jefferson: “Col. Mason left Philada. in an exceeding ill humour indeed . . . . He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.” ²

Mason’s argument would not carry the day. After the Constitution was adopted without a bill of rights, critics continued their opposition in the state ratifying conventions.

The Ratification Debates

The Anti-Federalists feared that the new national government would inevitably exceed its enumerated powers, usurp the powers of the states, and infringe on the liberties of the people. In the Virginia ratifying convention, Mason argued that “the general government being paramount to, and in every respect more powerful than the state governments, the latter must give way to the former.”³ Mason, as noted, had declined to sign the Constitution, in part because it lacked a bill of rights. The Anti-Federalists maintained that a bill of rights would be necessary to prevent such oppression. For support, they pointed to many state constitutions that had bills of rights.

The Federalists argued that the analogy between the federal and state constitutions did not work. State constitutions were not limited to specified enumerated powers. Instead, they conferred a general legislative power on the state governments. Because the states had so much power, there was a risk of oppression. State bills of rights, which limited that authority, were deemed necessary to guard individual rights against the danger of plenary governmental power. Madison explained the difference in Federalist No. 45. “The powers delegated by the proposed Constitution to the federal government are few and defined,” he argued, and the powers “which are to remain in the State governments are numerous and indefinite.” Congress’s powers “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” The states’ powers “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 Federalists insisted that a federal bill of rights was unnecessary because the proposed national government’s limited regulatory powers could reach only those objects granted to it. In Federalist No. 84, Alexander Hamilton similarly contended that a proposed amendment protecting the freedom of the press was unnecessary because Congress had no power to regulate the press: “Why . . . should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Moreover, the Federalists argued that a bill of rights was potentially dangerous. Under the normal rules of statutory construction, if a bill of rights expressly forbade the government from acting in certain areas, that would necessarily imply that the government had power to act in all other areas. That implication would risk changing the national government from one of limited powers to one of general legislative powers like those of the states. Hamilton emphasized in Federalist No. 33 that acts beyond government’s enumerated powers are “merely acts of usurpation” and “deserve to be treated as such.”

The Anti-Federalists could not be persuaded. As the price of ratification in several states, they insisted on assurances that a bill of rights, including a provision reserving to the states powers not delegated to the national government, would be considered by the First Congress.

Adoption of the Tenth Amendment

Despite Madison’s opposition to a bill of rights in The Federalist, he seemed to change his mind during the First Congress. Then-Representative James Madison proposed what became the Tenth Amendment. (For the drafting history of the Tenth Amendment, see Essay No. 187.) This provision established a rule of constitutional construction designed to protect against interpreting the Bill of Rights to imply the existence of powers in the national government that were not granted by the original document.

Early Practice and Judicial Precedent

In 1798, President John Adams approved the Alien and Sedition Acts. These laws criminalized false or malicious statements about the federal government. In response, then-Vice President Thomas Jefferson and James Madison secretly wrote the Kentucky and Virginia Resolutions, respectively. These resolutions declared that the Alien and Sedition Acts exceeded Congress’s delegated powers in violation of the Tenth Amendment. In other words, Congress lacked the enumerated powers to enact these restrictions on speech and the press. Jefferson argued that the statutes were “altogether void and of no force.”⁴ Because the acts were repealed or expired after Jefferson was elected President in 1800, the question of their constitutionality never reached the U.S. Supreme Court.

The Tenth Amendment had limited judicial application in the nation’s first century. No decision turned upon it. In McCulloch v. Maryland (1819), Chief Justice John Marshall declined to use the amendment as a vehicle for narrowly construing federal powers.⁵ Justice Joseph Story would observe similarly that the Tenth Amendment “is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution.”⁶ He explained that because the Constitution is “an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.”⁷

The New Deal Court

During the New Deal, the Supreme Court upheld sweeping federal laws and countenanced an unprecedented expansion of federal powers far beyond the expectations of those who framed and ratified the Constitution. In doing so, the Court relegated the Tenth Amendment essentially to the status of a nullity. NLRB v. Jones & Laughlin Steel Corp. (1937) recognized that the Tenth Amendment provides an “explicit reservation” for the “distinction between what is national and what is local. . . .”⁸ Only four years later, United States v. Darby (1941) declared that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” Justice Harlan Fiske Stone wrote that “[t]here is nothing in the history of [the Tenth Amendment’s] adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment. . . .” Its purpose, Stone explained, was to “allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”⁹

In case after case, the Supreme Court upheld Congress’s assertion of power to regulate such local concerns as manufacturing, agriculture, and labor relations. Wickard v. Filburn (1942) even upheld Congress’s power to regulate a single farmer’s production of wheat intended for consumption on his own farm.¹⁰ These New Deal Cases thus largely fulfilled the Anti-Federalists’ prophecy that the federal government would inevitably usurp the reserved powers of the states. Congress, with the Court’s blessing, has inverted Madison’s conception of federalism into one in which states’ reserved powers are “few and defined” and the federal government’s delegated powers are “numerous and indefinite,” extending “to all objects which, in the ordinary course of affairs concern the lives, liberties, and properties of the people.”

The Burger Court

In the 1970s, the Burger Court reconsidered the Tenth Amendment. Maryland v. Wirtz (1968) ruled that Congress could impose the federal minimum wage on state employees.¹¹ Justice William O. Douglas, joined by Justice Potter Stewart, dissented. They argued that “what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment that it is . . . not consistent with our constitutional federalism.”¹² Eight years later, the Court overruled Wirtz in National League of Cities v. Usery (1976),¹³ holding that the Tenth Amendment limits the federal government’s power to regulate state governments. Writing for the majority, Justice William H. Rehnquist found that the Tenth Amendment’s reservation of powers to the states barred the federal government from transgressing on traditional government functions essential to “the States’ ‘separate and independent existence,’” such as police and fire protection and public health facilities.¹⁴

Nine years later, however, the Court overruled National League of Cities. Garcia v. San Antonio Metropolitan Transit Authority (1985) held that the federal minimum wage could be imposed on municipal transit workers.¹⁵ Garcia reasoned that the states’ participation in the national political process would “ensure[] that laws that unduly burden the states will not be promulgated.”¹⁶ In other words, the states were adequately represented in Congress to prevent the enactment of burdensome statutes. The Court thus made clear that the federal judiciary would no longer entertain federalism challenges. Rather, Congress would henceforth be the sole judge of the constitutional limits on the reach of its powers. Justice Lewis Powell remarked in dissent that the decision “effectively reduce[d] the Tenth Amendment to meaningless rhetoric . . . .”¹⁷

The Garcia decision provoked a sharply negative reaction by President Ronald Reagan, who promptly formed a Federalism Working Group under the leadership of Attorney General Edwin Meese III. The Group’s work led to President Reagan’s issuance of an unprecedented executive order on federalism. It directed federal departments and agencies to adhere to nine “fundamental principles of federalism,” including the principle that, “in the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States.” And the Group specified that any “[u]ncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level.”¹⁸

The Rehnquist Court

During the 1990s, the Supreme Court revived the Tenth Amendment to enforce discrete limits on federal power to regulate state operations. The Rehnquist Court developed the commandeering doctrine. Under this line of cases, the machinery of state government could not be mandated to accomplish federal objectives. New York v. United States (1992) prevented Congress from requiring a state legislature to provide for the disposal of radioactive waste.¹⁹ Gregory v. Ashcroft (1991) found that a federal law regulating the employment of state judges would raise concerns under the Tenth Amendment.²⁰ Printz v. United States (1997) barred Congress from requiring state executive officials to implement a federal scheme of firearms regulation.²¹

Overall, however, the Rehnquist Court’s decisions curbing congressional power are but a modest correction of the federal government’s wholesale usurpation of the states’ reserved powers during the New Deal and Warren Court eras.

Open Questions

• The Garcia decision marks the low point in the Court’s abandonment of federalism as a judicially enforceable structural protection of state sovereignty and individual freedom against federal regulatory overreach. Should Garcia be overruled? What would be a proper test case to revisit that precedent?

1. Articles of Confederation, arts. II, III. ↩︎
2. 3 Farrand’s 135–36. ↩︎
3. 3 Elliot’s 29–30. ↩︎
4. Resolutions Adopted by the Kentucky General Assembly (Nov. 10, 1798), https://perma.cc/VS8C-MDVP. ↩︎
5. 17 U.S. (4 Wheat.) 316, 406 (1819). ↩︎
6. 3 Story’s Commentaries § 1900. ↩︎
7. Id. ↩︎
8. 301 U.S. 1 (1937). ↩︎
9. 312 U.S. 100, 124 (1941). ↩︎
10. 317 U.S. 111 (1942). ↩︎
11. 392 U.S. 183 (1968). ↩︎
12. Id. at 201–02 (Douglas, J., dissenting). ↩︎
13. 426 U.S. 833 (1976). ↩︎
14. Id. at 851. ↩︎
15. 469 U.S. 528 (1985). ↩︎
16. Id. at 556. ↩︎
17. Id. at 560 (Powell, J., dissenting). ↩︎
18. E.O. 12612, 52 FR 41685 (Oct. 26, 1987), https://perma.cc/7QHR-MSEJ. ↩︎
19. 505 U.S. 144 (1992). ↩︎
20. 501 U.S. 452 (1991). ↩︎
21. 521 U.S. 898 (1997). ↩︎