Following the drafting of the original Constitution in 1787, the document met with considerable resistance by Anti-Federalist forces both in state ratifying conventions and in wider public opinion. A good deal of this resistance came from the concern that the newly created federal government would grow in large proportions until it eventually swallowed up the states. While the framers of the Constitution felt that the type of statement made by what ultimately would become the Tenth Amendment was unnecessary, the pressure from the Anti-Federalists proved daunting. Thus, in order to assure ratification of the Constitution, a bill of rights, which was adopted in 1791, was necessary to assuage the fears of those concerned about the eventuality of a completely centralized government. This same type of debate, of whether the Tenth Amendment is simply a declaratory of what was certainly always implied in the Constitution or if the Tenth Amendment has some specific independent meaning placing limits on the federal government, remains even to this day.
|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 first real test regarding the boundaries of federal power came in the 1819 Supreme Court decision of McCulloch v. Maryland. In upholding the constitutionality of the Second Bank of the United States, Chief Justice John Marshall explained that while the federal government is one of enumerated powers, the Necessary and Proper Clause and the Supremacy Clause of the Constitution made clear that the framers understood that it would be impossible for any Constitution to enumerate all powers belonging to the federal government for all time. Accordingly, if the federal government was in pursuance of a legitimate objective (in this case, the power to coin money), it was acceptable for the federal government to do so using the most appropriate means (in this case, by having a bank). Although the power to have a bank is not among the enumerated powers of the federal government, use of a bank is still within the orbit of federal power so long as it is significantly related to achieving its legitimately enumerated objectives. By refusing to draw a bright line between federal and state powers, the Supreme Court opened the door to further expansion of national authority that has continued on and off throughout U.S. history.
It is not until the late 1800s when a significant shift began to occur regarding the interpretation of the Tenth Amendment. Using the wording of the Commerce Clause as a shield against increasing federal power, courts began to strictly limit the reach of the federal government in this area. The Commerce Clause grants Congress the power to regulate commerce among the several states, with foreign nations, and with Indian tribes. Yet, in a series of decisions lasting until 1937, the Commerce Clause was held to limit federal power to only those specific areas. For example, in United States v. E. C. Knight Company (1895), Congress was allowed to regulate commerce between the states, but not allowed to regulate the manufacturing of goods for interstate shipment. Manufacturing, according to the Court, had only an indirect effect on interstate commerce.
Other famous cases of this era that used the Tenth Amendment to curtail federal power in favor of states’ rights included striking down the Federal Child Labor Act of 1916, which prohibited the shipment of goods produced through child labor through the channels of interstate commerce. Speaking for the Court in Hammer v. Dagenhart (1918), Justice William Day found the production of goods to be a purely local matter over which the federal commerce power could not reach. The Supreme Court also struck down the National Industrial Recovery Act of 1933 in Schechter Poultry Corporation v. United States (1935), finding the creation of industry-wide codes of fair competition outside of federal reach according to the Tenth Amendment, and the Agricultural Adjustment Act of 1933 in United States v. Butler (1936), finding the use of the federal taxing power to reach local farm production an intrusion of state power. Speaking for the Supreme Court, Justice Owen Roberts explained these decisions in simple terms, stating that the Tenth Amendment was adopted to forestall any suggestion that the United States is not a government of delegated powers. Since the Tenth Amendment implies that “powers not granted are prohibited” and no power to regulate agriculture production is granted, Congress is forbidden from regulating in that area.
This general theme, finding the Supreme Court striking down a variety of federal legislation under the authority of the Tenth Amendment, would continue until 1937. The reasons for the shift in interpretation regarding the Tenth Amendment are many, but the main trigger was more political than legal. After several major New Deal laws had been held unconstitutional, President Franklin D. Roosevelt came to believe that something had to be done about the Court in order to save the New Deal. Following his reelection in 1936, President Roosevelt proposed changes to the makeup of the federal judiciary. Making the argument that the courts were overburdened and filled with many infirm judges, Roosevelt proposed that for every judge over the age of 70, the president should be entitled to appoint one additional judge to the court where the senior judge was commissioned (up to a maximum of fifteen members for the U.S. Supreme Court). At the time of his proposal, six of the nine Supreme Court justices were over the age of 70. Accordingly, had this plan been approved, President Roosevelt would have been able to add six new justices to the Supreme Court and, in doing so, would have been able to select individuals who shared his views regarding federal power under the Tenth Amendment. The “court-packing plan,” as this became known, was never enacted. However, the threat to the integrity of the judiciary did produce the results Roosevelt had been seeking.
In a virtually unbroken line of cases, beginning in 1937 and lasting until 1995, the interpretation of the Tenth Amendment and the scope of federal power under the Commerce Clause changed dramatically. While most pre-1937 decisions had used the Tenth Amendment to strictly limit the reach of the federal government, beginning with National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), the scope of federal power was allowed to increase exponentially while at the same time the Tenth Amendment was relegated to practical insignificance.
In National Labor Relations Board v. Jones and Laughlin, the Supreme Court upheld the constitutionality of the National Labor Relations Act protecting the rights of workers to unionize and bargain collectively. Though nothing had changed regarding the history or wording of the Tenth Amendment, the political landscape had changed dramatically. By upholding the law in question and allowing federal regulation of work-place rights, the Supreme Court basically defused the controversy and ultimately ensured the defeat of the court-packing plan. Sometimes referred to as the “switch in time that saved nine,” this decision marked the beginning of a revolution in terms of the divide between federal and state authority. Further, over the next four years, President Roosevelt (through the normal retirement process) was able to appoint eight new justices to the Supreme Court, ultimately assuring that the justices shared his vision regarding national power.
Four years later, in United States v. Darby (1941), the reduction of the Tenth Amendment reached its ebb. Upholding the Fair Labor Standards Act against a Tenth Amendment challenge, the Supreme Court not only unanimously decided that the regulation of child labor was within the federal commerce authority (which was in direct conflict with the Hammer decision handed down just twenty-three years earlier), but also specifically held that its decision was “unaffected by the Tenth Amendment.” Finding that the amendment stated “but a truism,” the Court went on to say that “there is nothing in the history of its adoption to suggest that it was more than a declaratory of the relationship between the national and state governments as it had been established by the Constitution before the Amendment.”
In the years that followed, basically everything the federal government justified under its commerce power was upheld, oftentimes without even a reference to the Tenth Amendment. Gone was the “direct versus indirect effects” test used in prior decisions. This was replaced by the idea that so long as the activity had any effect on interstate commerce, the Tenth Amendment did not prevent federal regulation. Examples of activities upheld as proper exercises of federal power included the Agricultural Adjustment Act of 1938, which included the regulation of wheat that was grown on a farm for the farmer’s own consumption and that was never to be bought or sold (Wickard v. Filburn 1941); the Civil Rights Act of 1964 regulating equal access in motels and restaurants (Heart of Atlanta Motel v. United States and Katzenbach v. McClung 1964); and the Consumer Credit Protection Act regulating loan sharking as part of organized crime (Perez v. United States 1971). All of these activities involved purely local activity in areas traditionally reserved to the states. Nonetheless, the Tenth Amendment no longer prevented the federal government from taking over these areas.
This trend was briefly interrupted in 1976. In National League of Cities v. Usery, the Supreme Court held that the Tenth Amendment did indeed have some life, finding that Congress’s extension of the Fair Labor Standards Act to apply to state employees did violate Tenth Amendment protections. Justice William Rehnquist, writing for the majority, held that although the Tenth Amendment had been characterized as a “truism,” it was “not without significance.” In doing so, it was further determined that there exist functions that are “essential to the separate and independent existence” of states, and in these areas Congress may not regulate. While unable to state with specificity what these areas included, one certain function was the “power to determine the wages . . . to those they employ to carry out their governmental functions.”
Ultimately, the Usery decision would prove a short-lived victory for states’ rights. Nine years later, in Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme Court reversed its decision in Usery, finding the “essential functions” dichotomy unworkable in practice. Despite finding that any attempt to define “essential governmental functions” was impossible, the Court nonetheless reasoned that states’ rights were adequately protected through the composition of the federal government itself. All members of Congress are elected on a state or local basis. Accordingly, while serving as members of the national legislative branch, the members of Congress are also representatives of individual state and/or local interests and constituencies. This structure ultimately ensures that the national government does not become too powerful or take too much authority from the states. In this sense, the structure of the federal government rather than a judicial reading of the Tenth Amendment would be the ultimate safeguard for state authority.
In 1995, the landscape surrounding the Tenth Amendment took a dramatic shift once again. For the first time since 1937, the Supreme Court in United States v. Lopez (1995) held that Congress had exceeded its authority under the Commerce Clause and invaded areas reserved to the states in the Tenth Amendment. At issue in Lopez was the Gun-Free School Zone Act, which made it a crime to possess a gun in a school zone. In holding this law unconstitutional, Chief Justice Rehnquist started his opinion with a nod to the importance of the Tenth Amendment, stating that in starting with “first principles” the Constitution created a federal government with enumerated powers. Rehnquist went on to quote from James Madison, stating that the powers delegated to the federal government are “few and defined” while the powers of states are “numerous and indefinite.” The Court ruled that to hold possession of a gun as part of Congress’s power to regulate commerce among the several states would create a situation where it would be “difficult to perceive any limitation on federal power, even in areas . . . where states have historically been sovereign.”
This was followed in 1997 by the decision in Printz v. United States. At issue was the constitutionality of the Brady Handgun Violence Prevention Act, which, among other things, required the chief law enforcement officer of each locality to ensure a background check was done prior to the sale of all handguns on an interim basis until a national system could be created to take over this responsibility. Following the opening created in Lopez, the Supreme Court once again found that Congress had overstepped its authority. Justice Antonin Scalia, writing for the Court, held that the impressments into service of state and/or local government employees at the hands of the federal government went too far. Citing the Tenth Amendment for authority, the Court recognized that the states, under the Constitution, had indeed surrendered many of their powers to the federal government; but states nonetheless retained a “residual and inviolable sovereignty.” Justice Clarence Thomas wrote a separate concurrence to highlight the point that the Tenth Amendment was no longer to be construed as a mere truism. Thomas wrote separately to emphasize that the “Tenth Amendment affirms the undeniable notion that under our Constitution, the federal government is one of enumerated, hence limited, powers.”
Most recently, the U.S. Supreme Court, once again relying heavily on the Tenth Amendment, struck down the Violence against Women Act in United States v. Morrison (2000). The Court held that to allow Congress to regulate crime would be too great an intrusion into traditional state areas.
The Tenth Amendment has seen many ebbs and flows over the years. Without the addition of the Tenth Amendment, it was unlikely that the Constitution would have ever been ratified. In the early days of the republic, it was an important consideration as the nation grew. By the mid-nineteenth century, the Tenth Amendment was consistently invoked by courts to prevent the expansion of federal powers and to protect traditional state authority. Following the court-packing plan, for nearly sixty years, the Tenth Amendment was reduced to irrelevance, discarded as nothing more than a truism. Since 1995, the Tenth Amendment has experienced a rebirth as a critical defense in protection of state authority against federal encroachment. In any system where states exist as separate independent entities in common with an equally sovereign federal government, divisions of power such as the Tenth Amendment will always produce tensions on both sides of the debate.
Phillip B. Kurland and Ralph Lerner, The Founders’ Constitution (Chicago: University of Chicago Press, 1987); Leonard W. Levy and Kenneth L. Karst, Encyclopedia of the American Constitution (New York: Macmillan Reference USA, 2000); and Ralph A. Rossum and Alan Tarr, American Constitutional Law (Belmont, CA: Wadsworth/Thomson Learning, 2003).
Paul I. Weizer
Last Updated: 2006
SEE ALSO: Carter v. Carter Coal Company; Commerce among the States; Garcia v. San Antonio Metropolitan Transit Authority; Hammer v. Dagenhart; Heart of Atlanta Motel v. United States; McCulloch v. Maryland; National Labor Relations Board v. Jones and Laughlin Steel Corporation; National League of Cities v. Usery; Necessary and Proper Clause; Schechter Poultry Corporation v. United States; Printz v. United States; Taxing and Spending Power; United States v. Lopez; Wickard v. Filburn