Tenth Amendment to the United States Constitution

Based on Wikipedia: Tenth Amendment to the United States Constitution

The Amendment That Says What Everyone Already Knew

Here's something strange: one of the ten amendments in the Bill of Rights has been called, by the Supreme Court itself, a "truism"—a statement so obviously true that it adds nothing new. The Tenth Amendment essentially says that the federal government only has the powers the Constitution gives it, and everything else belongs to the states or the people.

That sounds almost redundant. Of course a government only has the powers it's been given. What else would it have?

But this seemingly empty statement has sparked two centuries of fierce legal battles, a Civil War, and continues to shape debates about federal power today. Understanding why requires going back to the founding of the nation itself.

The Fear That Gave Birth to the Bill of Rights

When the Constitution was being debated in 1787 and 1788, not everyone was celebrating. A vocal group called the Anti-Federalists looked at the proposed new government with deep suspicion. They had just fought a revolution against a distant, powerful government in London. Now, some of the same people who had helped win that independence were proposing another centralized government—this time in Philadelphia, then New York.

The Anti-Federalists weren't crazy. They remembered what happened when faraway rulers accumulated power. They wanted explicit limits.

The Constitution's supporters, the Federalists, argued this was unnecessary. James Madison, often called the "Father of the Constitution," thought the whole structure of the document already limited federal power. The government could only do what the Constitution specifically authorized. Why spell out that it couldn't do other things?

But the Anti-Federalists had a compelling response: governments have a way of finding powers that no one explicitly gave them. Better to make the limits crystal clear.

A Crucial Word Left Out

The story of the Tenth Amendment hinges on a single word that almost made it into the text but didn't: "expressly."

Under the Articles of Confederation—the loose arrangement that governed America between the Revolution and the Constitution—there was a provision stating that each state retained every power "not by this Confederation expressly delegated to the United States."

That word "expressly" was important. It meant the central government could only do exactly what the document literally said. No reading between the lines. No implied powers.

When Thomas Tucker of South Carolina and Elbridge Gerry of Massachusetts proposed amendments to the new Constitution in 1789, they wanted that word "expressly" included. The federal government would be limited to powers "expressly delegated."

Madison objected strenuously. A government, he argued, cannot function if it's confined only to explicitly stated powers. Some things must be implied. If the Constitution gives Congress the power to raise an army, surely it implies the power to feed that army, house that army, transport that army—none of which are literally mentioned.

The version with "expressly" was voted down. Roger Sherman of Connecticut then drafted what became the final text: "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."

No "expressly." Just "delegated."

This omission opened the door to implied powers—and to centuries of argument about how far those implied powers extend.

A Truism With Teeth

For much of American history, courts treated the Tenth Amendment as Madison had always seen it: a reminder of something already obvious, not a grant of new limits. In 1932, the Supreme Court said the amendment "added nothing to the Constitution as originally ratified."

States and local governments have repeatedly tried to use the Tenth Amendment as a shield against federal regulations, particularly around labor and environmental laws. Usually, they lost. The courts would shrug and say: yes, powers are reserved to the states, but the federal government is exercising a legitimate power here, so the amendment doesn't help you.

Then something shifted.

Starting in 1992, the Supreme Court began giving the Tenth Amendment sharper teeth through what lawyers call the "anti-commandeering doctrine." This principle says the federal government cannot force state governments to do its bidding.

The Anti-Commandeering Revolution

The case that changed things involved radioactive waste. In 1985, Congress passed a law dealing with low-level radioactive waste—the moderately dangerous stuff from hospitals and research labs, not the extremely dangerous material from nuclear reactors. The law gave states incentives to set up disposal sites. But one provision went further: if a state didn't deal with its waste by 1996, the state would be forced to take legal ownership of all that waste and become liable for any damages.

New York State challenged this. The Supreme Court, in New York v. United States (1992), agreed with the state. Justice Sandra Day O'Connor wrote that Congress cannot simply commandeer state governments to do federal work.

Congress has tools. It can attach conditions to federal funding—if you want highway money, raise your drinking age to 21. It can directly regulate things itself using its constitutional powers. It can even preempt state laws when its own laws conflict.

But it cannot turn state officials into federal employees and order them to implement federal policy.

Five years later, the principle was reinforced in Printz v. United States. The Brady Handgun Violence Prevention Act required local law enforcement to conduct background checks on gun buyers while a federal system was being built. Justice Antonin Scalia wrote for the majority that this was unconstitutional. The federal government was drafting state employees into federal service without their consent.

The most recent major application came in 2018. A federal law from 1992 had forbidden states from legalizing sports betting if it had been illegal in that state when the law passed. New Jersey wanted to legalize sports gambling and challenged the restriction. In Murphy v. National Collegiate Athletic Association, the Supreme Court struck down the law. If Congress cannot force states to pass laws, it equally cannot force them to keep laws. The anti-commandeering principle cuts both ways.

The Commerce Clause: The Federal Government's Secret Weapon

To understand the limits of the Tenth Amendment, you need to understand its great rival: the Commerce Clause.

Article I of the Constitution gives Congress the power to "regulate Commerce with foreign Nations, and among the several States." This seemingly narrow authority over interstate trade has become the most expansive source of federal power, the constitutional basis for everything from civil rights laws to drug prohibition.

The transformation happened during the Great Depression. The economic collapse that began in 1929 revealed that the national economy was deeply interconnected. A bank failure in New York affected farmers in Kansas. A factory closing in Detroit meant less money spent at shops in California.

The Supreme Court, which had been striking down federal economic regulations, changed course. In a famous case from 1942 called Wickard v. Filburn, the Court considered whether the federal government could regulate wheat that a farmer grew and consumed entirely on his own farm. The wheat never crossed state lines. It never entered any market. The farmer fed it to his own chickens and made his own bread.

The Court said yes, the federal government could regulate even this.

The reasoning was economic: if many farmers did this, it would affect the national market for wheat. All those farmers growing wheat for their own use meant less wheat being bought and sold. In the aggregate, purely local activity became interstate commerce.

This logic reached its extreme in 2005. A California woman named Angel Raich grew cannabis plants in her backyard for her own medical use, legal under California's Proposition 215 but illegal under federal law. Her cannabis never left her property, much less crossed state lines. The Supreme Court, in Gonzales v. Raich, ruled that the federal government could still prosecute her. Homegrown marijuana, like homegrown wheat sixty years earlier, could theoretically affect the interstate market.

If Congress can regulate wheat you feed to your chickens and cannabis you consume yourself, what can't it reach?

The answer came in 1995 with United States v. Lopez. Congress had passed a law creating gun-free zones around schools. The Supreme Court, for the first time in decades, said Congress had overreached. Carrying a gun near a school had nothing to do with interstate commerce. There was no economic activity involved at all.

The limits exist, but they're narrow. If Congress can find an economic angle—and in a connected economy, it usually can—the Commerce Clause provides a path around state objections.

Cooper v. Aaron: When States Defied the Court

The Tenth Amendment became entangled with the ugliest chapter of American constitutional history: the fight over racial segregation.

In 1954, the Supreme Court declared in Brown v. Board of Education that segregating children by race in public schools was unconstitutional. The decision was unanimous. It was also, in much of the South, furiously resisted.

Arkansas Governor Orval Faubus became the face of this resistance. When nine Black students tried to attend the previously all-white Central High School in Little Rock in 1957, Faubus ordered the National Guard to block them. The image of armed soldiers preventing children from entering a school shocked the nation. President Eisenhower federalized the Arkansas National Guard and sent Army troops to escort the students inside.

The school board then asked for a delay in implementing integration, citing the chaos and resistance. The case reached the Supreme Court as Cooper v. Aaron in 1958. Arkansas officials argued, in effect, that they weren't bound by the Court's ruling in Brown because that case didn't directly involve Arkansas. The states, they claimed, retained sovereignty under the Tenth Amendment to evaluate whether Supreme Court decisions were constitutional.

The Court rejected this unanimously and in the strongest terms. The Constitution's Supremacy Clause makes federal law—including the Constitution as interpreted by the Supreme Court—the "supreme law of the land." State officials take an oath to support that Constitution. They cannot pick and choose which Court decisions to follow.

This didn't end the debate. Critics accused the Court of centralizing power, of ignoring state sovereignty, of betraying the founders' vision. But Cooper v. Aaron established a principle: individual states cannot nullify federal law or constitutional rulings just because they disagree with them.

The Ghost of Nullification

The idea that states can declare federal laws unconstitutional and void has a name: nullification. It's a zombie doctrine—seemingly killed many times but always rising again.

The theory goes like this: the states created the federal government through a compact, the Constitution. Since the states are the creators, they must be able to judge whether their creation has exceeded its powers. If a state determines that a federal law is unconstitutional, it can declare that law null and void within its borders.

Thomas Jefferson and James Madison themselves seemed to endorse something like this in the Kentucky and Virginia Resolutions of 1798, written in opposition to the Alien and Sedition Acts. Madison would later back away from the more extreme implications, but the seeds were planted.

The most dramatic confrontation came during the Nullification Crisis of 1832-1833. South Carolina declared federal tariffs null and void within the state. President Andrew Jackson—no fan of big government himself—was apoplectic. He threatened to hang the nullifiers and sent warships to Charleston. The crisis was defused through a compromise tariff, but the constitutional question was never fully resolved by courts.

The Civil War provided a resolution of a different kind. The Confederacy was, in many ways, the ultimate expression of states' rights theory—the idea that states could not only nullify federal laws but leave the Union entirely. The Union's victory decisively settled that question: states cannot secede, and federal authority, where it legitimately exists, is supreme.

Yet nullification keeps returning in new forms. States have declared federal gun laws, marijuana laws, and immigration laws void within their borders. Some of these efforts have practical effect: the federal government has limited resources and often relies on state cooperation. If a state refuses to help enforce federal marijuana prohibition, federal agents alone can't possibly catch every user.

But the legal theory of nullification remains dead. No court has accepted it since before the Civil War. The question isn't whether states can nullify federal law—they can't. The question is whether the federal law in question actually falls within federal power in the first place.

The Paradox of Reserved Powers

What exactly are the "powers reserved to the states" that the Tenth Amendment protects?

The traditional answer includes things like:

• General police powers—the authority to protect health, safety, and welfare
• Education policy
• Family law—marriage, divorce, custody
• Property law
• Criminal law for crimes without a federal dimension
• Establishing local governments

But here's the paradox: almost all of these can be, and often have been, affected by federal law.

Education is a state responsibility, but federal money comes with federal strings attached. Criminal law is traditionally state business, but federal drug laws, gun laws, and civil rights laws create overlapping federal crimes. Marriage was purely a state matter until the Supreme Court ruled that states couldn't ban same-sex marriage. Property law seems purely local until environmental regulations or federal land use policies enter the picture.

The lines between state and federal authority have blurred enormously since 1791. The federal government has grown from a few hundred employees to millions. Its budget has gone from a tiny fraction of the economy to roughly a quarter of it. Its regulations touch virtually every aspect of American life.

Does this mean the Tenth Amendment has failed? Or that it was never really intended to prevent federal expansion, only to clarify the theoretical principle of limited government?

The Amendment's Current Life

Today, the Tenth Amendment matters most in three areas.

First, anti-commandeering. The federal government cannot conscript state officials into federal service. This is a real limit with real consequences. Federal marijuana prohibition continues, but many states have opted out of helping enforce it. Immigration policy is federal, but "sanctuary" jurisdictions can refuse to assist federal immigration enforcement. The federal government can do what it wants with its own resources, but it cannot force states to spend theirs.

Second, conditional spending. The federal government can attach conditions to money it gives states, but the conditions cannot be so coercive that they effectively leave states no choice. In 2012, the Supreme Court ruled that Congress couldn't threaten to take away all existing Medicaid funding from states that didn't expand the program under the Affordable Care Act. That was a gun to the head, not a genuine offer.

Third, symbolic politics. Politicians invoke the Tenth Amendment constantly, even when their legal arguments are weak. "States' rights" remains a powerful rallying cry. The amendment serves as a reminder that the American system was designed to leave significant power at the state and local level, even if the precise boundaries are perpetually contested.

What the Founders Couldn't Know

The men who drafted and ratified the Tenth Amendment could not have imagined the country that would invoke it two centuries later. They lived in a nation of four million people hugging the Atlantic coast. Communication took days or weeks. Most economic activity was agricultural and local. The idea of a truly national economy, let alone a global one, would have seemed fantastical.

They also could not have known how elastic their language would prove to be. The Commerce Clause, which seemed to address ships carrying cargo between ports, became the constitutional basis for civil rights laws. The Necessary and Proper Clause, which gave Congress power to pass laws necessary for executing its other powers, became a broad grant of implied authority.

The Tenth Amendment was supposed to be a limit, a reassurance, a statement of the obvious. It remains all of those things. But in a nation transformed beyond recognition, the obvious isn't always obvious, and the limits aren't always clear.

What hasn't changed is the underlying tension the amendment was meant to address: the fear of concentrated power versus the need for effective governance. How much authority should distant officials have over local matters? When does federal uniformity serve the common good, and when does it crush legitimate diversity? These questions were live in 1791, and they remain live today.

The Tenth Amendment doesn't answer these questions. It just reminds us to keep asking them.