The Tenth Amendment

22 May

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 original Constitution of 1788 contained very few specific restrictions on the ways in which the power of the national government could be exercised against the people. It guaranteed the right to trial by jury in criminal (but not civil) cases, placed limits on prosecutions and punishments for treason, forbade bills of attainder (laws aimed at particular persons) and ex post facto laws (laws that punished conduct that was legal when it happened), limited any restrictions on habeas corpus to certain designated emergencies, and prohibited the granting of titles of nobility. But the Constitution that emerged from the 1787 Constitutional Convention contained nothing like a comprehensive bill of rights. Most state constitutions of the time had bills of rights, and many citizens—and members of the Constitutional Convention—expected the new national constitution to have one as well. Nonetheless, the state delegations at the Constitutional Convention voted 10-0 against including a bill of rights in the Constitution.

The sense of the Convention delegates was that a bill of rights, in the context of the federal Constitution, was unnecessary and even dangerous. It was considered unnecessary because the national government was alimited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people. There was, for example, no need for a provision protecting freedom of speech against Congress because, as James Wilson put it, “there is given to the general government no power whatsoever concerning it.” Edmund Randolph made the same point regarding freedom of religion, emphasizing that “[n]o part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.” Similar remarks were made during the drafting and ratification process regarding juries in civil cases, general warrants, and cruel and unusual punishment. The consistent line of the Constitution’s defenders was that no bill of rights was necessary because the limited and enumerated powers of the national government simply did not include the power to violate those rights.

They even maintained that inclusion of a bill of rights would be dangerous, because it might suggest that the national government had powers that it had not actually been granted. As Alexander Hamilton put it, bills of rights “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?” Moreover, any list of rights would be incomplete. Such a list might indirectly endanger any rights not included on it.

In sum, the Constitution’s Framers thought that a bill of rights was appropriate for an unlimited government, but not for a limited one like the national government created by the Constitution. The Constitution accordingly sought to secure liberty through enumerations of powers to the government rather than through enumerations of rights to the people.

Not everyone was convinced by these arguments. Indeed, the absence of a bill of rights threatened to derail ratification of the Constitution, especially in key states such as Massachusetts and Virginia.  A number of states ratified the Constitution only on the express understanding that the document would quickly be amended to include a bill of rights. The first Congress accordingly proposed twelve Amendments, the last ten of which were ratified in 1791 and now stand as the Bill of Rights.

The first eight of those ratified Amendments identify various rights of the people involving such things as speech, religion, arms, searches and seizures, jury trials, and due process of law. The last two address the concerns of the Constitution’s defenders that these enumerations of rights were pointless and even dangerous.

The Ninth Amendment warns against drawing any inferences about the scope of the people’s rights from the partial listing of some of them. The Tenth Amendment warns against using a list of rights to infer powers in the national government that were not granted. In referring, respectively, to “rights . . .  retained by the people” and “powers . . .  reserved  . . . to the people,” the Ninth and Tenth Amendments also evoke themes of popular sovereignty, highlighting the foundational role of the people in the constitutional republic.

The Tenth Amendment’s simple language—“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”—emphasizes that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers. 

In this sense, the Tenth Amendment is “but a truism.”United States v. Darby (1941). No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two centuries.

Nonetheless, beginning in 1976, a line of cases has emerged that seems to give substantive constitutional content to the Tenth Amendment. In 1986, inGarcia v. San Antonio Metropolitan Transit Authority, a narrow majority of the Supreme Court held that a city was required to comply with federal labor laws, and that state sovereignty interests should be protected by the participation of states in the national political process, rather than by judicially-enforced principles of federalism. However, while Garcia has never been explicitly overruled, in subsequent cases the Court has indeed found judicially-enforceable limits on the power of the federal government to regulate states (and their political subdivisions) directly. So it is now meaningful to speak of “Tenth Amendment doctrine.” Those cases all involve action by the federal government that in some way regulates or commands state governments, such as by telling states what policies they must adopt, New York v. United States (1992), forcing state or local executive officials to implement federal laws or conditioning the states’ acceptance of federal money on compliance with certain conditions. Interestingly, the Tenth Amendment has not been invoked by the Court to protect individual citizens against the exercise of federal power.

Whether the Tenth Amendment actually is, or ought to be, serving as an independent source of constitutional principles of federalism is a matter of great controversy, both on and off the Court. Do these “Tenth Amendment” cases really involve the Tenth Amendment, or do they simply interpret (or perhaps misinterpret) specific grants of federal power in light of certain principles codified in the Tenth Amendment, but present in the Constitution’s structure and design even before the Bill of Rights was ratified?

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