The Tenth Amendment among the shadows: on reading the constitution in Plato's Cave.

• Author: Bybee, Jay S.

In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not merely their shadows, whether he would know them from their two-dimensional shapes or whether he would be perplexed and find the objects less real than their images.(1)

For Socrates, the final burst of light represents "the essential Form of Goodness[,] ... the parent of intelligence and truth," a dazzling, bewildering display for which only some men will be prepared.(2) Upon their return to the cave, these select "king bees in a hive" will see "a thousand times better than those who live there always [and] will recognize every image for what it is."(3) For our freed prisoner, the sudden illumination reveals a whole new world previously hidden from his view, a world whose ultimate reality may seem unreal to one whose vision had been obscured for so long. Our prisoner may not recognize the new shapes that appear before him, although their general contours are familiar. Once exposed to three-dimensional objects having depth and color, our enlightened prisoner will never be satisfied with the limited images of his former existence.

For the rest of our prisoners, however, for whom escape will never come, the shadows on the wall are the only evidence of those objects that they will know. They may suspect that there is something behind those limited shapes, but their understanding of the world must be based on the shadows that they actually know, rather than a reality that they cannot see and have no means of accessing. From our perspective, the prisoners of the cave live a visually--and sensorially--impoverished existence; for them, their life is as rich as their circumstances will permit.

In one sense, the shadows the prisoners have viewed for so long are no less real than the objects they represent, but they are only two-dimensional representations of much more complex and variegated forms. The shadows are, nonetheless, real in the shadowy world in which they exist. The shadows themselves do not obscure the objects they represent. Instead, the shadows are the confluence of light and the perspective of the viewer, whose vantage point is blocked from full view of the ultimate objects. The shadows may distort the true shape of those objects, but sometimes the shadows are themselves the best evidence of the reality behind them. The prisoners may be deceived by the shadows; but more often than not, the shadows prove that at least something is there. Once the prisoners know of the existence of some ultimate reality beyond the shadows, they will not mistake the shadows for the thing itself, but the shadows may nonetheless prove reliable and serve as the best evidence of a reality whose access has been denied them.

In this essay, I argue that we more closely resemble the prisoners left in the cave than Socrates's enlightened prisoner and that the Constitution is full of shadows that demand our careful scrutiny. These shadows are evidence of state power and are the only evidence the Constitution will provide us. Owing to its origins, the Constitution creates a federal government and confers power to its branches. Those powers that are not so conferred--either expressly or implicitly--are reserved to the states that ceded their own powers under the Constitution, or to the people, who are the ultimate source of all governmental power. Because the Constitution does not define the powers of the states in the same way that it defines the powers of Congress, for example, we must seek vestiges of state power. Unlike Socrates's enlightened prisoner who finds the ultimate light source, we shall not discover the source of state powers in the Constitution. Only in the shadows of federal authority will we make out the authority of the states. The shadows themselves--of which the Tenth Amendment(4) is the most obvious example--are the most direct evidence of the reality of state authority.

The Supreme Court has long struggled to define substantively the powers that belong to the states, and it has long searched for that meaning in the Tenth Amendment. To the extent that the Court is looking for substantive content in the Tenth Amendment, that exercise will be futile. The Tenth Amendment defines a relationship between the federal government, the states, and the people and, accordingly, cannot supply the powers that belong to the states or the people, as the Court attempted to do in National League of Cities v. Usery(5) and New York v. United States.(6) Furthermore, the Court cannot abandon the search for constitutional federalism to the political process, as it has suggested in cases such as Garcia v. San Antonio Metropolitan Transit Authority,(7) because the Court's process-based federalism makes no sense in light of the Court's history of substantive constitutional review. Even the Court's most recent pro-state decisions, Printz v. United States(8) and Alden v. Maine,(9) offer little promise. Those cases preserve the irreducible core of state powers, the administration of state government itself, but promise no substantive authority to govern anything but the state itself. These cases are symbolic--and symbols can be important--but no real state authority lies within their pages.

The Court can and should, however, take meaning from the simple existence of the Tenth Amendment. The fact that we even have a Tenth Amendment demonstrates the reality behind it and imposes on the Court a duty to define the enumerated powers in such a way that the states are not relegated to irrelevance and, ultimately, extinction. Thus, the only recent case that holds real promise for enhancing state powers is United States v. Lopez.(10) Moreover, the Tenth Amendment is not the sole evidence for the states' powers. The Constitution is textured with the shadows of state authority that prove, indirectly, the reality of that authority.

1. STATE POWERS IN THE CONSTITUTION'S SHADOWS

   In some sense we are prisoners of our Constitution. As a law superior to all other laws, the Constitution circumscribes our political institutions and holds us as a people securely within its walls.(11) The Constitution is well illuminated, full of the inspired political thought of a generation schooled in the Enlightenment. The Constitution creates a government, to which it both assigns power and divides the assignment among three branches. The separation of powers was a great contribution to the world's political thought; but it was not the Constitution's most original contribution. That contribution was constitutional federalism, a plan knitting together a body of existing states into a union in which the national government could represent states and people in some matters, while the states could retain their own sovereignty with respect to other matters.(12) Whatever political order the Constitution's framers hoped to bring to the American states, they never pretended to prescribe all governmental powers,(13) and they frankly acknowledged that there was another realm beyond the charter's general purview. This realm was the power of the states, which were governed by their own existing constitutions and charters.(14)

   Our Constitution presupposed the governmental powers of the states. Where the document prohibited certain state activities,(15) it did so to secure the powers of the federal government(16) and to respect the powers of coordinate state governments.(17) The Constitution is asymmetrical with respect to power: whereas the Constitution enumerates the powers of the federal government,(18) it never contemplated affirmatively prescribing the powers of the states. To the extent that it defines state powers, the Constitution does so through negative implication: it vests the Congress with "[a]ll legislative Powers Herein granted,"(19) it lists a number of actions that "[n]o state shall" commit,(20) and it otherwise provides that, "[t]he 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."(21)

   For those powers affirmatively granted to the United States, and for those negative powers, or disabilities, imposed on the states, the Constitution provides the powers or disabilities themselves; it does not ask us to imagine or define those powers or disabilities ourselves. By contrast, the powers retained by the states (including those powers that are not only concurrent, but exclusive) are a shadowy lot, whose existence is largely defined by what has not been committed to the United States or prohibited to the states. The task of determining what powers belong to the states is not impossible, but the effort has been made difficult because it cannot be done directly or affirmatively, as can be done with respect to the powers of Congress. To understand state authority under our Constitution, rather, we must determine what is not assigned to Congress. State authority, like Plato's ultimate reality, cannot be determined by reference to the thing itself, but only by studied reflection on the shape of something else, namely, the powers of Congress. This mechanism proves extraordinarily awkward in defining the powers of a government. (In retrospect, I would not recommend this mechanism, but it is a consequence of the way in which our Constitution came into being.)

   For much of our history, the Court has labored to define those federal powers that most obviously touch on state powers: commerce...