Tenth Amendment

Author:Sotirios A. Barber

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Adopted in 1791 as part of the BILL OF RIGHTS, the Tenth Amendment declares that "powers not delegated to the United States by the Constitution ? are reserved to the States respectively, or to the people." This language was an attempt to satisfy the public that the new constitution would not make a reality of that most repeated of Anti-Federalist fears: a completely centralized or "consolidated" government. But while the Tenth Amendment reminded Congress that its concerns were limited, the Constitution envisioned the effective exercise of national power, as the NECESSARY AND PROPER CLAUSE and the SUPREMACY CLAUSE indicated. The inevitable question was to be: what happens when Congress's responsibilities require measures the states say are beyond Congress's powers? JOHN MARSHALL attempted the Supreme Court's first answer to this question in MCCULLOCH V. MARYLAND (1819). McCulloch is best interpreted as advancing the following propositions: by granting and enumerating powers, the Constitution envisions the pursuit of a limited number of ends (see ENUMERATED POWERS) ; the framers did not and could not have enumerated all the legislative means appropriate to achieving constitutional ends in changing historical circumstances; Congress can select appropriate means to authorized national ends without regard for state prerogatives; the states, by contrast, cannot enact measures conflicting with lawful congressional policies.

To reach these conclusions Marshall observed that in drafting the Tenth Amendment the First Congress had

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refused to limit national powers to those "expressly granted," as the ARTICLES OF CONFEDERATION had done, and that a STRICT CONSTRUCTION of national powers would defeat the vital purposes for which the Constitution had been established. By rejecting a rigid line between state and national powers McCulloch opened the way to the future assumption of state responsibilities by the national government as needed to achieve national ends. Critics charged that Marshall would consolidate all power in the national government by permitting unlimited means to an ostensibly limited number of national ends. Marshall defended his theory by insisting that judges should invalidate pretextual congressional acts, that is, congressional acts cloaked in the commerce power and other national powers but actually aimed at state concerns, not at the free flow of commerce or other authorized national ends...

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