Tenth Amendment to the United States Constitution
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The Tenth Amendment (Amendment X) to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, a part of the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
, was ratified on December 15, 1791. It expresses the principle of
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
, also known as
states' rights In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
, by stating that the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
has only those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved to each state. The amendment was proposed by the 1st United States Congress in 1789 during its first term following the adoption of the Constitution. It was considered by many members as a prerequisite before they would ratify the Constitution, and particularly to satisfy demands of
Anti-Federalists Anti-Federalism was a late-18th century political movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the 1787 Constitution. The previous constitution, called the Articles of Con ...
, who opposed the creation of a stronger federal government. The purpose of this amendment is to clarify how the federal government's powers should be interpreted and to reaffirm the nature of federalism. Justices and commentators have publicly wondered whether the Tenth Amendment retains any legal significance.


Text


Drafting and adoption

The Tenth Amendment is similar to Article II of the
Articles of Confederation The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
: After the Constitution was ratified, South Carolina Representative
Thomas Tudor Tucker Thomas Tudor Tucker (June 25, 1745May 2, 1828) was a Bermuda-born American physician and politician representing Charleston, South Carolina. He was elected from South Carolina in both the Continental Congress and the U.S. House. He later w ...
and Massachusetts Representative Elbridge Gerry separately proposed similar amendments limiting the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
to powers "expressly" delegated, which would have denied
implied powers In the United States, implied powers are powers that, although not directly stated in the Constitution, are implied to be available based on previously stated powers. History When George Washington asked Alexander Hamilton to defend the constituti ...
.
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
opposed the amendments, stating that "it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia." When a vote on this version of the amendment with "expressly delegated" was defeated,
Connecticut Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
Representative
Roger Sherman Roger Sherman (April 19, 1721 – July 23, 1793) was an American statesman, lawyer, and a Founding Father of the United States. He is the only person to sign four of the great state papers of the United States related to the founding: the Cont ...
drafted the Tenth Amendment in its ratified form, omitting "expressly". Sherman's language allowed for an expansive reading of the powers implied by the
Necessary and Proper Clause The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution: Since the landmark decision '' McCulloch v. Maryland'', the US Supreme Court has ruled that this clause gr ...
. When James Madison introduced the Tenth Amendment in Congress, he explained that many states were eager to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
The states ratified the Tenth Amendment, declining to signal that there are unenumerated powers in addition to unenumerated rights. The amendment rendered unambiguous what had previously been at most a mere suggestion or an implication. The phrase "... or to the people" was hand written by the clerk of the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
as the Bill of Rights circulated between the two Houses of Congress.


Judicial interpretation

The Tenth Amendment, which makes explicit the idea that the powers of the federal government are limited to those powers granted in the Constitution, has been declared to be a
truism A truism is a claim that is so obvious or self-evident as to be hardly worth mentioning, except as a reminder or as a rhetorical or literary device, and is the opposite of falsism. In philosophy, a sentence which asserts incomplete truth conditio ...
by the Supreme Court. In '' United States v. Sprague'' (1932) the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
asserted that the amendment "added nothing to the onstitutionas originally ratified." States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of
labor Labour or labor may refer to: * Childbirth, the delivery of a baby * Labour (human activity), or work ** Manual labour, physical work ** Wage labour, a socioeconomic relationship between a worker and an employer ** Organized labour and the la ...
and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from ''
United States v. Darby Lumber Co. ''United States v. Darby Lumber Co.'', 312 U.S. 100 (1941), was a case in which the United States Supreme Court upheld the Fair Labor Standards Act of 1938, holding that the U.S. Congress had the power under the Commerce Clause to regulate emplo ...
'', reads as follows: In ''
Garcia v. San Antonio Metropolitan Transit Authority ''Garcia v. San Antonio Metropolitan Transit Authority'', 469 U.S. 528 (1985), is a landmark United States Supreme Court decision in which the Court held that the Congress has the power under the Commerce Clause of the Constitution to extend the F ...
'' (1985), the Court overruled '' National League of Cities v. Usery'' (1976). Under ''National League of Cities'', the determination of whether there was state immunity from federal regulation turned on whether the state activity was "traditional" for or "integral" to the state government. In ''Garcia'', the Court noted that this analysis was "unsound in principle and unworkable in practice", and concluded that the
Framers The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
believed state sovereignty could be maintained by the political system established by the Constitution. Noting that the same Congress that extended the Fair Labor Standards Act to cover government-run mass transit systems also provided substantial funding for those systems, the Court concluded that the structure created by the Framers had indeed protected the states from overreaching by the federal government. In ''
South Carolina v. Baker ''South Carolina v. Baker'', 485 U.S. 505 (1988), was a Supreme Court of the United States, United States Supreme Court case in which the Court ruled that section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) does not v ...
'' (1988), the Court said in ''
dicta In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...
'' that an exception to ''Garcia'' would be when a state lacked "any right to participate" in the federal political process or was left "politically isolated and powerless" by a federal law.


Commandeering

Since 1992, the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
has ruled the Tenth Amendment prohibits the federal government from forcing states to pass or not pass certain legislation, or to enforce federal law. In ''
New York v. United States ''New York v. United States'', 505 U.S. 144 (1992), was a decision of the United States Supreme Court. Justice Sandra Day O'Connor, writing for the majority, found that the federal government may not require states to “take title” to radioact ...
'' (1992), the Supreme Court invalidated part 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 this 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 imposing that obligation on a state violates the Tenth Amendment. Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. attach conditions to the receipt of federal funds, see ''
South Dakota v. Dole ''South Dakota v. Dole'', 483 U.S. 203 (1987), was a case in which the United States Supreme Court considered the limitations that the Constitution places on the authority of the United States Congress when Congress uses its authority to influence ...
'',.) or through the commerce power (directly pre-empt state law). However, Congress cannot directly compel states to enforce federal regulations. In '' Printz v. United States'' (1997),. the Court ruled that part of the
Brady Handgun Violence Prevention Act The Brady Handgun Violence Prevention Act ( Pub.L. 103–159, 107 Stat. 1536, enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill, is an Act of the United States Congress that mandated federal background checks on ...
violated the Tenth Amendment. The act required state and local law enforcement officials to conduct background checks on people attempting to purchase handguns. Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
, writing for the majority, applied ''New York v. United States'' to show that the act violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional. In ''
Murphy v. National Collegiate Athletic Association ''Murphy v. National Collegiate Athletic Association'', No. 16-476, 584 U.S. ___ (2018), was a United States Supreme Court case involving the Tenth Amendment to the United States Constitution. The issue was whether the U.S. federal government ha ...
'' (2018), the Supreme Court ruled that the
Professional and Amateur Sports Protection Act of 1992 The Professional and Amateur Sports Protection Act of 1992 (), also known as PASPA or the Bradley Act, was a law, judicially-overturned in 2018, that was meant to define the legal status of sports betting throughout the United States. This act ...
, which prohibited states that banned
sports betting Sports betting is the activity of predicting sports results and placing a wager on the outcome. The frequency of sports bet upon varies by culture, with the vast majority of bets being placed on association football, American football, basket ...
when the law was enacted from legalizing it, violated the anti-commandeering doctrine and invalidated 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.


Commerce Clause

In the 20th century, the
Commerce Clause The Commerce Clause describes an 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 amon ...
became one of the most frequently-used sources of Congress's power. Its interpretation is important in determining the allowable scope of federal government. Complex economic challenges arising from the
Great Depression The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy. In ''
Wickard v. Filburn ''Wickard v. Filburn'', 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New ...
'' (1942), in the context of
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, the Court ruled that federal regulation of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm (i.e., fed to animals or otherwise consumed on the premises). The rationale was that a farmer's growing "his own" 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 ''
United States v. Lopez ''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
'' (1995), a federal law mandating a "
gun-free zone The Gun-Free School Zones Act (GFSZA) is an act of the U.S. Congress prohibiting any unauthorized individual from knowingly possessing a loaded or unsecured firearm at a place that the individual knows, or has reasonable cause to believe, is ...
" on and around public school campuses was struck down. The Supreme Court ruled that there was no clause in the Constitution authorizing the federal law. This was the first modern Supreme Court opinion to limit the government's power under the Commerce Clause. The opinion did not mention the Tenth Amendment or the Court's 1985 ''Garcia'' decision. Most recently, in '' Gonzales v. Raich'' (2005), a California woman sued the
Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a Federal law enforcement in the United States, United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within th ...
after her
medical cannabis Medical cannabis, or medical marijuana (MMJ), is cannabis and cannabinoids that are prescribed by physicians for their patients. The use of cannabis as medicine has not been rigorously tested due to production and governmental restrictions ...
crop was seized and destroyed by federal agents. Medical cannabis was explicitly made legal under California state law by
Proposition 215 Proposition 215, or the Compassionate Use Act of 1996, is a California law permitting the use of medical cannabis despite marijuana's lack of the normal Food and Drug Administration testing for safety and efficacy. It was enacted, on November ...
, despite
cannabis ''Cannabis'' () is a genus of flowering plants in the family Cannabaceae. The number of species within the genus is disputed. Three species may be recognized: ''Cannabis sativa'', '' C. indica'', and '' C. ruderalis''. Alternatively ...
being prohibited at the federal level by the
Controlled Substances Act The Controlled Substances Act (CSA) is the statute establishing federal government of the United States, federal drug policy of the United States, U.S. drug policy under which the manufacture, importation, possession, use, and distribution of ...
. 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. In theory the product ''could'' enter the stream of interstate commerce, even if it clearly had not been grown for that purpose and was unlikely ever to reach any market (the same reasoning as in ''Wickard v. Filburn''). It therefore ruled that this practice may be regulated by the federal government under the Commerce Clause.


Supremacy Clause

In ''
Cooper v. Aaron ''Cooper v. Aaron'', 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States, which denied the school board of Little Rock, Arkansas, the right to delay racial desegregation for 30 months. On September 12, 1958, th ...
'' (1958), the Supreme Court dealt with states' rights and the Tenth Amendment. The case came about when conflicts arose in direct response to the ruling of another landmark case, ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'' (1954). In ''Brown'', the Supreme Court unanimously declared 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". Among those opposing the decision (and all efforts of desegregation) was the Governor of Arkansas,
Orval Faubus Orval Eugene Faubus ( ; January 7, 1910 – December 14, 1994) was an American politician who served as the 36th Governor of Arkansas from 1955 to 1967, as a member of the Democratic Party. In 1957, he refused to comply with a unanimous ...
. A group of black students known as the
Little Rock Nine The Little Rock Nine were a group of nine African American students enrolled in Little Rock Central High School in 1957. Their enrollment was followed by the Little Rock Crisis, in which the students were initially prevented from entering ...
were to attend the previously all-white Central High School under the school board's attempt to follow the order of ''Brown''. The tension became severe when Governor Faubus ordered the National Guard to prevent the nine from entering the school and President Eisenhower responded with federal troops to escort them. 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 not only on racism and segregation but also on states' rights and the Tenth Amendment. The Court cited the Supremacy Clause of Article VI, which declares the Constitution to be the supreme law of the land, and ''
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, U.S. Supreme Court case that established the principle of Judicial review in the Uni ...
'' in holding that the states must abide by the Court's decision in ''Brown''. Expectedly, many states' right advocates and state officials criticized the ruling as an attack on the Tenth Amendment. Moreover, they claimed the Court's decision on ''Cooper'' as being inconsistent with the constitutional vision of the Framers.


Federal funding

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 Cooperative federalism, also known as marble-cake federalism, is defined as a flexible relationship between the federal and state governments in which both work together on a variety of issues and programs. In the United States In the American f ...
. 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 In common usage and in philosophy, ideas are the results of thought. Also in philosophy, ideas can also be mental representational images of some object. Many philosophers have considered ideas to be a fundamental ontological category of being ...
. Similarly, the nationwide state 55 mph (89 km/h)
speed limit Speed limits on road traffic, as used in most countries, set the legal maximum speed at which vehicles may travel on a given stretch of road. Speed limits are generally indicated on a traffic sign reflecting the maximum permitted speed - expres ...
, 0.08 legal blood alcohol limit, and the nationwide state 21-year
drinking age The legal drinking age is the minimum age at which a person can legally consume alcoholic beverages. The minimum age alcohol can be legally consumed can be different from the age when it can be purchased in some countries. These laws vary between ...
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 ''
National Federation of Independent Business v. Sebelius ''National Federation of Independent Business v. Sebelius'', 567 U.S. 519 (2012), was a List of landmark court decisions in the United States, landmark United States Supreme Court decision in which the Court upheld Congress's power to enact most ...
'' (2012), the Court ruled that the
Patient Protection and Affordable Care Act The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Presi ...
(commonly referred to as the ACA or Obamacare) unconstitutionally
coerced Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
the states to expand
Medicaid Medicaid in the United States is a federal and state program that helps with healthcare costs for some people with limited income and resources. Medicaid also offers benefits not normally covered by Medicare, including nursing home care and pers ...
. 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.


Nullification

The Tenth Amendment has been used as a prominent tool of invoking
nullification Nullification may refer to: * Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution * Nullification Crisis, the 1832 confront ...
, or invalidation of any federal laws which that state has deemed unconstitutional with respect to the United States Constitution. Notably, the Tenth Amendment has been successfully utilized to nullify federal laws pertaining to
gun rights The right to keep and bear arms (often referred to as the right to bear arms) is a right for people to possess weapons (arms) for the preservation of life, liberty, and property. The purpose of gun rights is for self-defense, including securi ...
,
immigration Immigration is the international movement of people to a destination country of which they are not natives or where they do not possess citizenship in order to settle as permanent residents or naturalized citizens. Commuters, tourists, and ...
,
cannabis ''Cannabis'' () is a genus of flowering plants in the family Cannabaceae. The number of species within the genus is disputed. Three species may be recognized: ''Cannabis sativa'', '' C. indica'', and '' C. ruderalis''. Alternatively ...
, and more.


See also

*
Principle of conferral The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of its member states, and all its competences are voluntarily conferred on it by its member states. The Union has no compe ...
*
State legislation in protest of federal law in the United States Several US States of the United States, States have introduced various resolutions and legislation in protest to federal actions.
*
States' rights In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
*
Tenther movement The Tenther movement is a social movement in the United States, whose adherents espouse the political ideology that the federal government's enumerated powers must be read very narrowly to exclude much of what the federal government already does, ...


References


External links


CRS Annotated Constitution: Tenth AmendmentTenth Amendment Center
*Lindner, Doug

{{Authority control 10 Federalism in the United States States' rights 1791 in American law 1791 in American politics