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 a limited 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, in Garcia 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, Printz v. United States (1997), or conditioning the states’ acceptance of federal money on compliance with certain conditions, South Dakota v. Dole (1987). 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?
When initially added to the United States Constitution, the Tenth Amendment stood as a reminder of the continuing importance of states and of the foundational role of the people. The Amendment was significant not for the text it supplied, but for the structure it emphasized. That structure has evolved over time. Recently, the United States Supreme Court has sought to revive the Amendment, with unfortunate results. The Court has found in the Amendment a license to create new barriers to the exercise of national authority, barriers that lack foundation in the text or structure of the Constitution or in sound policies of federalism.
In the early part of the Twentieth Century, the Supreme Court relied on the Tenth Amendment in resisting expanded assertions of national power. However, during the New Deal, Congress enacted a range of federal regulatory programs, such as Social Security, designed to stabilize the economy, protect workers, and promote the general welfare. Once the Court acquiesced in the New Deal’s vision of a more active federal government, the Tenth Amendment receded from view. From the late 1930’s to the mid-1970’s, the Tenth Amendment essentially disappeared from U.S. Constitutional law. After a brief reemergence, the Tenth Amendment went back underground in 1985, before returning, apparently to stay, in 1992.
Good reasons existed for the disappearance of the Tenth Amendment. The Amendment refers to the “The powers not delegated to the United States by the Constitution . . . .” With the expanded role of the national government validated in the New Deal era, the domain designated as “reserved to the States . . . or to the People” shrank dramatically. Further, during the Civil Rights era, when Congress and federal courts were taking measures to end racial discrimination, the Tenth Amendment became associated with assertions of “states’ rights” to resist claims of civil rights. The Tenth Amendment suffered from the assertion that the powers reserved to the states included the power to enforce racial inequality. Politically, socially, and morally, the Tenth Amendment seemed to speak to the past, not the present or the future.
The revival of attention to the Tenth Amendment in the 1990’s formed part of the Supreme Court’s New Federalism. In addition to renewed reliance on the Tenth Amendment, the Court also imposed greater scrutiny on Congress’s power to regulate interstate commerce. Along similar lines, the Court invoked the Eleventh Amendment to limit the ability of Congress to subject states to suit in federal court, even for claims that the states were violating federal law.
The Court’s New Federalism doctrines, in general, and its Tenth Amendment cases, in particular, lack foundations in text or sound policy. Even while reinvigorating the Tenth Amendment in New York v. United States (1992), the Court reaffirmed that the Tenth Amendment is a “truism” and “essentially a tautology.” The Court stated that the impact of the Amendment is “not derived from its text.” Indeed, by its terms, the Tenth Amendment applies to powers “not delegated to the United States by the Constitution.” The Tenth Amendment thus appears to have no application to the exercise of Congress’s enumerated powers. In its current incarnation, however, the function of the Tenth Amendment is to impose a non-textual limit on the use of federal power. The Court has held that even when the federal government is regulating interstate commerce, as authorized by Article I, section 8 of the Constitution, the federal government still may not invade certain protected enclaves of state sovereignty. The national government cannot “commandeer” the operation of state governments by forcing states or their political subdivisions to regulate in accordance with a federal plan or to enforce federal law. For example, in New York v. United States, the Court held that the Tenth Amendment prohibited Congress from enacting a comprehensive plan for the disposal of radioactive waste that required states to assume responsibility for the disposal of waste within their borders. The Court reads the Tenth Amendment as functioning like the First Amendment, as carving out part of Congress’s enumerated powers. That reading runs counter to the text of the Tenth Amendment.
This essay is part of a discussion about the Tenth Amendment with Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law. Read the full discussion here.
By way of policy justification, the Court has suggested that it must draw clear lines between domains of state and federal authority. The blurring of federal and state functions, the Court asserts, would undermine the accountability of government officials. The citizens would not know to which government entity they should address policy concerns. Scholars have questioned the empirical underpinnings of this line of argument. Are people really so easily confused? Moreover, given the extensive overlap of state and federal power in so many areas, how important is it that some area of state exclusivity be maintained? Citizens would need a fairly sharp sense of discernment to know which would be the few areas in which the federal government was immune from responsibility.
The basic problem is that the language of the Tenth Amendment appears to assume a clear demarcation of state and federal domains of authority. This conception, sometimes termed “dual federalism,” no longer comports with reality. The areas of society subject to federal regulation have grown significantly over time. The power “To regulate commerce with foreign nations, and among the several states” encompasses a greater realm of activity that in prior centuries. That expansion results from the dramatic changes in society and the economy, along with the Framers’ choice to use the broad term of “commerce.” Accordingly, there are vast areas of overlap between state and federal authority. It is a fool’s errand to try to limit the overlap by carving out protected enclaves of exclusive state and exclusive federal regulation.
The good news is that federalism is alive and well in the United States today. States remain vital centers of policy debate and experimentation. State and federal power intersects and overlaps in many ways that promote the well-being of the people. The interplay of state and federal decisions leading to the Supreme Court’s declaring a federal constitutional right to same-sex marriage offers one recent example of federalism at work. Federal and state courts and legislatures engaged in a dialogue that eventually resulted in the recognition of a national right. However, this federalism does not rely on outdated notions of exclusive areas of state sovereignty. This healthy federalism flourishes in spite of, not because of, the Supreme Court’s efforts to demarcate enclaves of state power immune from national regulation. For the moment, these exclusive state domains remain relatively small, offering little resistance to the exercise of enumerated federal powers. Should the Court expand these enclaves, however, current Tenth Amendment doctrine would become a more significant, and pernicious, force.
The Tenth Amendment formally changed nothing in the Constitution. As the joint statement indicates, no law that would have been constitutional before ratification of the Tenth Amendment is unconstitutional afterwards. The Tenth Amendment simply makes clear that institutions of the federal government exercise only limited and enumerated powers – and that principle infused the entire idea and structure of the Constitution from 1788 onwards. Nonetheless, there is significant constitutional value in the Tenth Amendment – and perhaps even enough value to justify the seemingly odd line of cases that use the provision directly to invalidate congressional laws and thereby create Tenth Amendment “doctrine.”
As a matter of the Constitution’s original meaning, the entire Bill of Rights of 1791 was principally declaratory of facts about national power that were true even without the Bill of Rights. The enumerated powers of the national government, as the Constitution’s defenders consistently maintained, simply did not give the national government much power to violate the rights articulated in the first eight amendments and referenced by the Ninth Amendment. The Constitution’s enumerations of power include no “issuance of general warrants clause,” “congressional regulation of religion clause,” “abolition of civil juries clause,” “limitation on the right to keep and bear arms clause,” and so forth. The Constitution does contain one clause that quite specifically allows Congress to limit freedom of speech: The Copyright Clause of Article I, section 8, clause 9, which authorizes Congress to secure “to Authors . . . the exclusive Right to their . . . Writings” and thereby limits the freedom of speech of persons who want to reproduce or use someone else’s writings. As a number of prominent Federalists pointed out during the ratification debates, this carefully targeted authorization to limit speech cuts strongly against any more general national power in the area. The enumerated powers of the President and the federal courts are similarly limited; no reasonable person in 1788 would think that grants of “executive Power” and “judicial Power” were free-standing authorizations to violate widely understood rights. Nor could Congress violate rights in the course of implementing federal powers under the so-called “Necessary and Proper Clause,” as any such rights-violating laws would not be “necessary and proper” for executing those powers. As the Federalists argued to tedium, the whole Bill of Rights was mostly just a big exclamation point.
In that respect, the Tenth Amendment is not materially different from the rest of the Bill of Rights. It may make little formal sense to speak of “Tenth Amendment doctrine,” but it makes almost as little formal sense to speak of “First Amendment doctrine” or “Fourth Amendment doctrine.” Those other provisions make only marginal, if any, changes in the pre-1791 legal baseline (and those changes mostly involve persons in federally-owned territory, over whom Congress exercises much broader power than it does over residents of states). Virtually every case involving the application of the Bill of Rights to the federal government can, and probably should, be recast as a case about the scope of the federal government’s enumerated powers. (The numerous cases applying various provisions of the Bill of Rights to actions of state governments via the Fourteenth Amendment are a whole different story that is not relevant here.) Thus, if there is any value at all in speaking of “First Amendment doctrine,” “Fourth Amendment doctrine,” etc., in connection with the federal government, the same considerations make it valuable to talk about “Tenth Amendment doctrine.”
This essay is part of a discussion about the Tenth Amendment with Robert Schapiro, Dean and Asa Griggs Candler Professor of Law, Emory University School Of Law. Read the full discussion here.
There are two other, and more concrete, ways in which the Tenth Amendment has constitutional value. First, the reminder that powers not delegated to institutions of the national government do not belong to institutions of the national government should prevent anyone from inferring particular federal powers from the general nature of governments, rather than from specific grants of power to this specific federal government. Nonetheless, the Supreme Court, especially in the late nineteenth and early twentieth centuries, has sometimes been very fond of arguments that run something like: “All self-respecting governments can do X, our national government is a self-respecting government, therefore our national government can do X.” This kind of reasoning was used to support dubious federal powers to exercise eminent domain, to implement a military draft, to hold overseas colonies, and to pass laws concerning immigration. (If one actually reads the Constitution, one finds enumerated congressional power over naturalization but not a power over immigration, which therefore left the latter to the individual states unless it can be jammed into the idea of “Commerce with foreign Nations” or is somehow an “executive Power.”) A straightforward reading of the Tenth Amendment forecloses that line of reasoning.
Second, the Tenth Amendment, along with the rest of the Bill of Rights, might have value as a kind of backstop in case the original Constitution’s meaning gets too deranged. In modern times, the enumerated powers of the national government have been misread beyond all recognition, to the point that the actual Constitution is not really part of the governing structure at all. We live with a shadow, or “zombie,” Constitution that has the outer husk of the original document but none of its actual substance. Once the enumerated powers are misconstrued out of existence, weight falls on the rest of the Constitution, most notably the Bill of Rights, to restore to some very modest degree the original balance of power. The various “Tenth Amendment” cases decided by the Supreme Court may serve this function. Congress, for instance, has no enumerated power to conscript state legislatures or executives into enforcing federal law (though it does actually have enumerated power to conscript state courts into hearing federal cases through the Article I Tribunals Clause). But if arguments that rest on a lack of enumerated power are foreclosed by wretchedly bad prior cases, then subbing in the Tenth Amendment to reach the correct result is not a completely irrational strategy. It may not be as good as getting the enumerated powers right in the first place, but it may be a plausible second-best solution.