The Tenth Amendment

by Kapp L. Johnson

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. 

One of the original 10 Bill of Rights, the 10th Amendment was ratified on December 15, 1791. The amendment expresses the principle of federalism, which is the basis of the structure of the Constitution. The federal government has certain express powers, which are spelled out in the Constitution. The powers that are not enumerated are reserved to the states or to the people.

Given the experience of the young United States of America, there was a deep distrust of a strong central government. The states existed as political entities prior to the creation of the federal government. For figures such as Thomas Jefferson, the legislative and executive branches had too much power in the Constitution and were insufficiently checked. The purpose of the amendment was as a necessary rule of construction and served as a reaffirmation of the nature of federalist freedom.

The amendment is similar to an earlier provision found in the Articles of Confederation ratified in 1781.  

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (Article 2)

In 1819, Chief Justice John Marshall rejected a 10th Amendment argument in McCulloch v. Maryland, noting that the amendment, unlike the similar section of the Articles of Confederation, omitted the word “expressly” as a qualification of granted powers, declaring that its effect was to leave the question open whether a particular contested power has been delegated to one government or prohibited to the other. Nevertheless, until 1937, the 10th Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the 14th Amendment, and to lay and collect taxes. 

Subsequently, the Supreme Court has considered the 10th Amendment when considering federal taxing power, federal police power and federal regulation affecting state activities and instrumentalities. It is not often that the Supreme Court declares laws unconstitutional for violating the 10th Amendment, but the trend appears to be reversing..

Kapp L. Johnson is a senior lecturer in ethics and law in the School of Management at California Lutheran University. He holds a doctorate from the University of La Verne College of Law and is a member of the California Bar Association.

The Amendment Project is a new weekly series that will appear through October, featuring the Bill of Rights and Amendments 11-27 with a brief synopsis of their purposes written by professors of California Lutheran University and CSU, Channel Islands.