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The U.S. Supreme Court, Second Edition

Tenth Amendment

by H. Lee Cheek Jr.

Announced: 1791

Description: Amendment to the U.S. Constitution and part of the Bill of Rights that reserves for the states those powers not delegated to the federal government by the Constitution.

Significance: The Supreme Court’s decisions involving the Tenth Amendment were not always consistent. At times the amendment was criticized as redundant and at others reaffirmed as a valuable part of the Constitution.

The Tenth Amendment protects the reser ved powers of the state, those not delegated to the federal government by the U.S. Constitution. The First Congress received numerous requests to include a means of protecting the reser ved powers of the states. These concerns arose in many quarters during the Constitutional Convention of 1787 and ratification process, especially among the Antifederalists, who feared that an overbearing national government would assume the authority of the states. Article II of the Articles of Confederation had contained explicit provisions for protecting states, initiating a system whereby “each state retains its sovereignty.” Various early state constitutions included provisions outlining the primacy of states in the confederal arrangement.

Federalists and Antifederalists

The most popular form of amendment requested during the state ratification conventions and proposed to the First Congress concerned a reser ved powers clause. The defenders of the Constitution argued that such a provision was unnecessary. James Madison suggested in No. 39 of The Federalist (1788) that each state was “a sovereign body,” bound only by its voluntary act of ratification. Other Federalists at the Virginia ratifying convention, including James Wilson, Alexander Hamilton, and John Marshall, held that such a provision was already present in the Constitution and that the new government would have only the powers delegated to it.

Opposition to and suspicion of the proposed Constitution on the grounds that it would infringe on the privileged status of the states was widespread. The defenders of state authority viewed the states as the repository of reser ved power, and many believed that states were invested with an equal capacity to judge infractions against the federal government. In the Virginia ratifying convention, George Nicholas and Edmund Randolph, members of the committee reporting the instrument of ratification, noted that the Constitution would have only the powers “expressly” delegated to it. If Federalists disagreed with the stress on state authority, they generally viewed a reser ved power clause as innocuous, and Madison included such a provision among the amendments he introduced in 1789.

In the First Congress, Elbridge Gerry, a Founder and Antifederalist elected to the House of Representatives, introduced a proposal reminiscent of the Articles of Confederation, leaving to the states all powers “not expressly delegated” to the federal government. Gerry’s proposal was defeated, in part because of concerns about the similarity between the language of his amendment and that of the articles.

Others who took a states’ rights or strict constructionist view of the Constitution, including Thomas Jefferson, persisted in defending state power. Before ratification of the Tenth Amendment, Jefferson advised President George Washington that incorporating a national bank was unconstitutional, basing his opinion on the amendment. Jefferson would later compose the Kentucky Resolutions, which defended the states as the sovereign building blocks of the American nation and noted that the states retained a means of protection when threatened. To describe the process of state action, Jefferson supplied a new term, nullification, to note the immediacy and severity of the “remedy” necessary to prohibit the federal government from absorbing state authority.

Defenders of the federal government, sometimes described as nationalists or loose constructionists, argued that Congress must assume more power if the needs of the country were to be met. Most prominent among the advocates of increased federal authority was Hamilton. For Hamilton, the Tenth Amendment was unnecessary as the political order already protected states. The Constitution, according to the nationalists, already contained provisions for the exercise of federal power, including the necessary and proper clause and supremacy clause.

Text of the Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reser ved to the States respectively, or to the people.

The Court and the Amendment

The Supreme Court addressed the controversy in McCulloch v. Maryland (1819). The Court upheld the constitutionality of a national bank, even though such an institution was not specified in the Constitution. In dismissing a strict delineation of state and federal authority, the Court, under the leadership of Marshall, extended the powers of Congress at the expense of the states. However, the Marshall Court also affirmed the notion that police powers belonged exclusively to the states. Under Chief Justice Roger Brooke Taney, the Court assumed more of a strict constructionist posture.

With the Civil War and Reconstruction, the authority and influence of the federal government were greatly increased. The role of the Tenth Amendment was essentially disregarded as federal troops occupied southern states and Congress provided governance. The authority of the states continued to suffer, resulting in part from a series of Court decisions in the twentieth century. In Champion v. Ames (1903), the Court affirmed a congressional act that prohibited the sale of lottery tickets across state lines as an effort to limit gambling. Before Champion, decisions regarding gambling were made by the states. The decisions of the Court were not consistent, and it soon adopted a view of the relationship between states and the federal government that allowed each to be authoritative in its own sphere, exempting “state instrumentalities” from federal taxation. In Hammer v. Dagenhart (1918), the Court ruled in favor of state power in terms of commerce. The Tenth Amendment would, however, suffer its most severe criticism in United States v. Darby Lumber Co. (1941). In this decision, Chief Justice Harlan Fiske Stone discredited the amendment as “redundant” and a “constitutional tranquilizer and empty declaration.”

Stone’s dismissal of the amendment turned out not to be permanent. During the 1970’s, the Burger and Rehnquist Courts began looking to the Tenth and Eleventh Amendments to construct a “new federalism,” resurrecting limits on Congress’s power to regulate the states. The first major case was National League of Cities v. Usery (1976). In a 5-4 margin in that decision, the Court ruled that the Tenth Amendment outweighed the commerce clause, so that Congress had no power to apply the federal minimum wage to employees of states and local governments. Nine years later, however, Justice Harry A. Blackmun changed his position in Garcia v. San Antonio Metropolitan Transit Authority (1985), resulting in a 5-4 vote to overturn the Usery ruling.

The Court’s official opinion in Gregory v. Ashcroft (1991), written by Justice Sandra Day O’Connor, defended the states’ autonomy under the doctrine of “dual sovereignty,” based primarily on the Tenth and Eleventh Amendments. O’Connor further asserted a “plain statement rule” with two-prongs: First, Congress must clearly articulate its intent to extend a law to the states; second, Congress must outline which activities are targeted under federal law. Gregor y’s limits on federal power would reappear in many subsequent cases, including New York v. United States (1992), in which the Court struck down the part of the Low-Level Radioactive Waste Policy Act that required states to “take title” of nuclear waste at the request of the generator of the waste. The Court concluded that the “take title” provision crossed the line between regulation and “commandeering” the states’ legislative processes, thus violating the Tenth Amendment. In Printz v. United States (1997), the Court again found that Congress had unconstitutionally intruded on state sovereignty in the portion of the Brady Act that required local law-enforcement officers to run background checks on hand gun purchasers.

Despite the justices’ expansive reading of the Tenth Amendment, Congress retained substantial powers to enforce laws affecting the states. In Reno v. Condon (2000), for example, the Court unanimously upheld the Driver’s Privacy Protection Act of 1994, which restricted the states’ disclosure of personal information on drivers licenses without consent. Chief Justice William H. Rehnquist explained that the disclosure of such information was clearly a matter of interstate commerce. In Raich v. Gonzales (2005), the Court upheld, by a 6-3 margin, federal enforcement of the Controlled Substances Act of 1970, which outlawed all uses of marijuana, even in states that legalized the substance for certain forms of medical use. Arguing that the law was consistent with the Tenth Amendment, Justice John Paul Stevens obser ved that marijuana consumption was part of a “class of activities” that substantially affected the regulation of interstate commerce—one of Congress’s enumerated powers.”

Further Reading

1 

Berger, Raoul. Federalism: The Founders’ Design. Norman: University of Oklahoma Press, 1987.

2 

Calhoun, John C. “A Discourse on the Constitution and Government of the United States.” In Union and Liberty: The Political Philosophy of John C. Calhoun, edited by Ross M. Lence. Indianapolis, Ind.: Liberty Fund, 1992.

3 

Hickok, Eugene W., Jr., ed. “The Original Understanding of the Tenth Amendment.” In The Bill of Rights. Charlottesville: University of Virginia Press, 1991.

4 

Killenbeck, Mark R., ed. The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues. Lanham, Md.: Rowman & Littlefield, 2002.

5 

Lofgren, Charles A. “The Origins of the Tenth Amendment, History, Sovereignty, and the Problems of Constitutional Intention.” In Constitutional Government in America, edited by Ronald K. L. Collins. Durham, N.C.: Carolina Academic Press, 1980.

6 

McAffee, Thomas, and Jay Bybee. Powers Reser ved for the People and the States: A History of the Ninth and Tenth Amendments. Westport, Conn.: Greenwood Press, 2006.

7 

Nagel, Robert F. The Implosion of American Federalism. New York: Oxford University Press, 2002.

8 

Noonan, John Thomas, Jr. Narrowing the Nation’s Power: The Supreme Court Sides with the States. Berkeley: University of California Press, 2002.

See also: Bill of Rights; Constitutional interpretation; Darby Lumber Co., United States v.; Federalism; McCulloch v. Maryland; Printz v. United States; Raich v. Gonzales; State action; States’ rights and state sovereignty; Stone, Harlan Fiske; Taney, Roger Brooke.

Citation Types

Type
Format
MLA 9th
Cheek, H. Lee. "Tenth Amendment." The U.S. Supreme Court, Second Edition, edited by Thomas Tandy Lewis, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=SC2E_0513.
APA 7th
Cheek, H. L. (2016). Tenth Amendment. In T. Lewis (Ed.), The U.S. Supreme Court, Second Edition. Salem Press. online.salempress.com.
CMOS 17th
Cheek, H. Lee. "Tenth Amendment." Edited by Thomas Tandy Lewis. The U.S. Supreme Court, Second Edition. Hackensack: Salem Press, 2016. Accessed December 14, 2025. online.salempress.com.