The Tenth Amendment: Federalism in the Bill of Rights
| Publication year | 1987 |
| Pages | 1618 |
| Citation | Vol. 09 No. 1987 Pg. 1618 |
1987, September, Pg. 1618. The Tenth Amendment: Federalism in the Bill of Rights
The Tenth Amendment to the U. S. Constitution is stated simply 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."(fn1) Its protection of state and local government prerogatives from federal commerce power overreaching historically has been less than uniform. As currently interpreted by the U.S. Supreme Court, in the Bill of Rights the Tenth Amendment stands last and certainly least.
This article discusses the impact of the Court's decisions on the Tenth Amendment and state and local government authority.
The Tenth Amendment originated from the strong opposition of the Anti-Federalists to the ratification of the proposed Constitution. Fearing a strong national government, the Anti-Federalists wished to defeat the Constitution. Their principal argument was that the Constitution lacked a bill of rights which would protect fundamental rights of the people and the states vis-á-vis the federal government.(fn2)
The Federalists saw little need for a bill of rights. They based this belief on the theory that those rights not given to the federal government in the Constitution were impliedly reserved to the people and the states.(fn3) However, in order to gain ratification of the Constitution, the Federalists relented on the issue of a bill of rights and proposed to consider such amendments as the first order of business of the Congress.(fn4)
The eight states ratifying the Constitution recommended amendments, including an amendment which would reserve to the states powers not delegated to the federal government.(fn5) James Madison, a Federalist who originally viewed a bill of rights as unnecessary, proposed certain amendments to the House of Representatives in June 1789,(fn6) including the proposition which was to become the Tenth Amendment.
Madison believed that under the Constitution the powers delegated to the federal government were "few and defined," and those that remained in the state governments were "numerous and indefinite."(fn7) He stated that the powers reserved to the states would "extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State."(fn8) Although Madison proposed the language that became the Tenth Amendment, he viewed this amendment as simply restating what was obvious from a reading of the Constitution in its entirety.(fn9)
The Tenth Amendment has experienced a checkered judicial history in terms of its effectiveness as a shield of the states from regulation by the federal government under the commerce clause. McCulloch v. Maryland(fn10) established two important principles that would affect later cases involving the commerce clause and the Tenth Amendment: the doctrine of implied powers and the corollary principle that the federal government could use all appropriate means to reach a legitimate goal.
Elaborating on the latter principle, Chief Justice Marshall, writing for the Supreme Court in Gibbons v. Ogden,(fn11) stated that the federal government, in the exercise of its enumerated powers, could use any appropriate means to accomplish its legitimate goals, even if the means might be the same as those utilized by the state in pursuit of powers reserved to the states...
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