The Tenth Amendment to the US Constitution
A Limitation on Federal Power Largely Ignored
Jul 28, 2009
The US Constitution’s Tenth Amendment reads as follows:
"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 Purpose of the Tenth Amendment
This amendment was to answer concerns that the central government created by the Constitution would not usurp powers intended to remain with the States. In practice the Tenth Amendment’s limitations have been largely ignored.
The Constitution applies to the federal government. Its sole purpose was to spell out what the government can do. The key principle of the Constitution was originally quite simple: positive grant of enumerated powers. This is not a phrase generally employed in 21st Century Constitutional discussion. It's not a complicated principle at all.
The Constitution was originally a grant of specific powers from the States that joined the union. The Tenth Amendment was to elucidate the fact that the US federal government is authorized to exercise only those powers which are specifically given to it.
The Tenth Amendment and McCulloch v. Maryland
This is not how the reading of the Tenth Amendment has developed. Very early on, the opinion by Chief Justice John Marshall in McCulloch v. Maryland turned aside the concept that the Tenth Amendment limited the central government to powers that were specifically granted by the Constitution. Marshall’s reading of the Constitution granted not only the enumerated powers, but an extensive collection of implied powers.
The Chief Justice emphasized a missing word in the Tenth Amendment. In Marshall’s view, the fact that the Framers changed the limiting language of the Articles of Confederation omitting the term “expressly” indicated that the intent was to give Congress a panoply of implied as well as expressly delegated powers.
Articles of Confederation Expressly Limited Congress
On the issue of powers delegated by the States to the central government, Article II of the Articles of Confederation read as follows:
"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated."
Marshall emphasized the difference between the Confederation limitation and the Constitutional limitation. Because of the lack of the term “expressly” the central government’s limitations were not to be strictly construed. The powers of the government could expand well beyond the specific constitutional grants of authority.
The Necessary and Proper Clause
The constitutional grant of authority that could allow the government’s authority to be exercised in areas well beyond limited constitutional grants was the Constitution’s Necessary and Proper clause, found at Article I, Sec. 8, clause 18:
“The Congress shall have Power *** To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”
The Tenth Amendment Becomes Superfluous
In determining that the Tenth Amendment contained no express limitation provision and that the Congress had the authority to make “necessary and proper” laws to execute the enumerated powers Marshall set the stage for making the Tenth Amendment a superfluous part of the Constitution.
While McCulloch v. Maryland set the stage in 1819, in 1985, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court ruled that Congress could even regulate how a State paid its employees, the Tenth Amendment notwithstanding.
Contrary to 1791 when the Tenth Amendment was ratified, in 2009 it is apparent there is little that Congress cannot regulate even if it impinges upon the traditional authority of State government. This is a somewhat ignominious fate for the final article of the Bill of Rights.
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