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T, Tenth Amendment.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 28 March 2023

Tenth Amendment.

Ratified in 1791 as part of the *Bill of Rights, the Tenth Amendment specifies 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.” Of all the amendments demanded by anti-Federalists in the state conventions that ratified the Constitution, one calling for a reserved powers clause was the most common. A number of Federalist spokesmen, including Alexander *Hamilton, James *Madison, and James *Wilson, argued that no such clause was necessary. But fear of central authority was widespread and support for an explicit guarantee that the states should retain control over their internal affairs reached irresistible proportions. In response to these fears, James Madison, in *The Federalist No. 45, maintained that the powers of a federal government are “few and defined” and extend “principally on external objects, as war, peace, negotiation, and foreign commerce,” whereas the powers reserved to the states are “numerous and indefinite” and “extend to all objects which, in the ordinary course of affairs concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.” In The Federalist No. 46, Madison reiterated the separation of powers doctrine by stating that the “Federal and State Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes.” Few Federalists thought the amendment would be harmful, and thus it came as no surprise when Madison included a reserved powers clause among the amendments he proposed in 1789.

Thomas *Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” Jefferson’s formulation of this doctrine of “strict construction” was echoed by champions of *state sovereignty for many decades.

The opposite, “loose construction” point of view, formulated by Secretary of the Treasury Hamilton, became the model for advocates of extended congressional power; but Hamilton’s opinion did not conflict with the substance of the Tenth Amendment. Indeed, to him the Reserved Powers Clause was tautological, expressing a principle that inheres in any republican government. Since Hamilton specifically rejected any claim that Congress could interfere in the internal affairs of a state—such concerns as the governance of the health, morality, education, and welfare of the people—his stand was not an argument against the Tenth Amendment, but against its necessity.

Early pronouncements on the subject by the Supreme Court adhered to the proposition that the *police power had been reserved exclusively to the states. Even Chief Justice John *Marshall, whose decision upholding the constitutionality of the Second Bank of the United States in *McCulloch v. Maryland (1819) closely reflected the reasoning in Hamilton’s 1791 opinion, vehemently denied afterward that he had thereby contributed to “any extension by construction of the powers of Congress” and insisted that he had ruled upon the legitimacy of the “means” of carrying out a power that had been constitutionally delegated.

Thus, from the presidency of Jefferson to that of Abraham *Lincoln, the consensus was that Jefferson had been right in calling the Tenth Amendment the foundation of the constitutional union. Indeed, at one time or another, state governments in all parts of the country defied the authority of the national government. New Englanders threatened secession after the Louisiana Purchase (1803) and again during the War of 1812 and blocked federal action during the Mexican War (1846–1848). Illinois, Ohio, and Wisconsin thwarted federal laws on several occasions. Southern states attempted to prevent the enforcement of federal laws in 1799 and the 1830s, and then in 1860–1861 eleven of them seceded.

Everythingchanged—temporarily—duringthe *Civil War and the *Reconstruction that followed. The powers of the federal government were enormously increased during the war, and though there was considerable shrinkage afterward, the government never returned to its minuscule prewar proportions. Accordingly, the Tenth Amendment was virtually suspended for several years after the war, as far as the defeated and discredited southern states were concerned. Through armies of occupation, Congress governed those states directly, and the congressionally created Freedmen’s Bureaus exercised the full range of police powers in regard to the former slaves. Of greater long-range significance, the *Fourteenth Amendment opened the door for congressional action in areas that would earlier have been regarded as reserved to the states.

Nonetheless, the constitutional revolution was transitory. In 1883, the Supreme Court, having already limited the Fourteenth Amendment’s protections of the rights of freedmen, declared the Civil Rights Act of 1875 unconstitutional on the ground that it was “repugnant to the Tenth Amendment” (*Civil Rights Cases, p. 15). During the next generation, the Court struck down a number of state exercises of the police power—in keeping with the Tenth Amendment’s “prohibited (p. 1008) by it to the states” clause—yet it never once allowed Congress to exercise a police power itself.

Erosion of the Tenth Amendment began early in the twentieth century. In 1895 Congress passed an act forbidding the shipment of lottery tickets in interstate commerce. The purpose was only nominally a regulation of commerce: its real purpose was to restrict gambling, a matter that had always been the exclusive domain of the states. In *Champion v. Ames (1903), the Supreme Court upheld the act. The next year, the Court in *McCray v. United States upheld a congressional act imposing a prohibitive excise tax on oleomargarine, which amounted to an exercise of a police power to protect the health of the citizenry, under the guise of a constitutional exercise of the power to levy taxes for the *“general welfare.”

The Supreme Court was not, however, consistent in its rulings, and the justices were sorely, even angrily, divided during the next three decades. The tension, throughout the period, was between the Tenth Amendment on one side and the powers of Congress to regulate interstate commerce and to levy taxes on the other. The most important police power actions justified under the Commerce Clause were the Pure Food and Drug Act (1906), the Meat Inspection Acts (1906 and 1907), and the White Slave Traffic Act (1910); the Supreme Court upheld all of these, even though it had ruled in Keller v. United States (1909) that an act protecting women from immoral trafficking was an unconstitutional violation of the Tenth Amendment. The most important police power actions justified under the taxing power were the Phosphorous Match Act (1912) and the Harrison Anti-Narcotics Act (1914), both of which were approved by the Supreme Court despite arguments that they violated the Tenth Amendment.

Then in 1918, the Court dropped a bombshell. Congress, in keeping with the reform spirit of the times, had in 1916 passed an act prohibiting the shipment in interstate commerce of the products of mines or factories that employed children under the age of fourteen. Two years later, in *Hammer v. Dagenhart, the Court ruled that the act was unconstitutional. In the majority opinion, Justice William R. *Day inserted the word “expressly” into the Tenth: “It must never be forgotten that the nation is made up of states, to which are entrusted the powers of local government. And to them and to the people the powers that are not expressly delegated to the national government are reserved” (p. 275). The next year the Court upheld a prohibitive tax on the use of narcotics, but in *Bailey v. Drexel Furniture Company (1922) it held unconstitutional a second child labor law based upon the government’s taxing power. In sum, the Supreme Court was sending mixed and confused signals to the Congress.

A new complication soon arose. Congress began to vote grants-in-aid to the states for various purposes, ranging from the prevention of forest fires to providing medical care for expectant mothers. In 1923 one such grant was challenged on the ground that it undermined the Tenth Amendment. In *Massachusetts v. Mellon (1923) the Court rejected the argument, declaring that “the statute imposes no obligation, but simply extends an option which the state is free to accept or reject” (p. 480). Ultimately, and especially from the 1950s onward, grants-in-aid or “revenue sharing” would grow so large as to make the states, in many ways, mere appendages of federal administrative agencies.

In the meantime, the whole subject had come to a head—and the Tenth Amendment was becoming a nullity—in the wake of the Great Depression and *World War II. Between 1934 and 1935, the Supreme Court declared unconstitutional a number of emergency economic recovery measures that formed part of Franklin *Roosevelt’s *New Deal program. Among the most far-reaching was the National Industrial Recovery Act, which had authorized the president to negotiate with industry to draw up “codes of fair practices” that would have the force of law. Writing for a unanimous Court in *Schechter Poultry Corp. v. United States (1935), Chief Justice Charles Evans *Hughes gave three reasons for striking down the law, the first being that it flew directly in the face of the Tenth Amendment. However, the Court underwent drastic changes when a majority of the justices became Roosevelt appointees, thus sparking a constitutional revolution in 1937. It came as no surprise, then, that the Court in *Mulford v. Smith (1939) completely rejected the Tenth Amendment opinions it had laid down in the child labor cases. In United States v. *Darby Lumber Co. (1941), Chief Justice Harlan Fiske *Stone reduced the amendment to nothing more than a truism, describing it as merely declaratory of intergovernmental relationships and as having no substantive meaning.

If the Tenth Amendment was ever a truism, that changed commencing with Justice William H. *Rehnquist’s sole dissent in Fry v. United States (1975). Only a year later, in *National League of Cities v. Usery, the Court held that application of the Fair Labor Standards Act to state and local government employees was a violation of the amendment. That decision opened so many problems, however, that the Court found it expedient to reverse itself explicitly in *Garcia v. San Antonio Metropolitan Transit Authority (1985) when Justice Harry A. *Blackmun unexpectedly (p. 1009) switched his vote. In New York v. United States (1992), the Court reasoned that monetary and access incentives offered to the states to comply with the Low-Level Radioactive Waste Policy Amendments Act of 1985 was a valid exercise of Congress’s power; the third incentive offered state governments a choice to accept ownership of waste or to follow the regulations of the 1985 act. According to the Court, by enacting this last provision, also known as “take-title” provision, Congress crossed the line that distinguishes encouragement from coercion. Similarly, in *Printz v. United States (1997), the Court held that Congress may not issue “directives requiring the States to address particular problems, nor command the States’ officers … to administer or enforce a federal regulatory program.” More recently, in Reno v. Condon (2000), the Court held that Driver’s Privacy Protection Act (1994) did not violate federalism principles as specified in New York v. United States and Printz v. United States; since unauthorized disclosure of a driver’s personal information is a “thin[g] in interstate commerce,” it constitutes a proper subject of congressional regulation.

The conflict surrounding interpretation of the Tenth Amendment will inevitably continue to be a hot topic before the Supreme Court justices, for inasmuch as the states continue to exist as distinct political and legal entities and the Tenth Amendment remains a part of the Constitution, the tensions arising from dual and divided sovereignty remain.

See also dual federalism; federalism; state sovereignty and states’ rights.

Raoul Berger, Federalism: The Founders’ Design (1987). E. S. Corwin, The Commerce Power Versus States Rights (1936). William E. Leuchtenburg, “The Tenth Amendment over Two Centuries: More than a Truism” in The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues, edited by Mark R. Killenbeck (2002). Charles A. Lofgren, “The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention,” in Constitutional Government in America, edited by Ronald K. L. Collins (1980), pp. 331–357. Ruth Locke Roettinger, The Supreme Court and State Police Power (1957).

Forrest McDonald; revised by Robert M. Hardaway and Adisa Hubjer