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The 10th Amendment vs. the Necessary and Proper Clause

James Madison, Father of the Constitution and of the Bill of Rights

James Madison, Father of the Constitution and of the Bill of Rights

Cartoon used to illustrate the Tenth Amendment

Cartoon used to illustrate the Tenth Amendment

Is the Tenth Amendment a Dead Letter?

The issue of the forms and uses of federal power, long an interesting topic of debate in a nation which claims to cherish a belief in limited government, has come to public attention in a new and absurd form recently. Members of the so-called "Tea Party" movement, which started in early 2009 to protest the bailouts passed at the close of the Bush Administration and the stimulus law at the beginning of Obama's term, have argued that these measures are unconstitutional through the Tenth Amendment. Regardless of the merits of this argument, what is even more thought-provoking is their spirited (though questionable) claim that the Tenth Amendment of the Constitution (the Reserved Powers Amendment) grants to the states and people those powers not expressly granted to the federal government by the Constitution. By making this claim, the movement displays a singular lack of historical knowledge, which the following paragraphs will attempt to demonstrate.

After declaring independence from Britain, the Continental Congress cobbled together a new government, the Articles of Confederation, which was meant to answer some of the specific objections the founders had against the British government, namely, that it had interfered excessively with the rights and privileges traditionally held by the colonies since their founding. Article II of the Articles dealt with delegated powers of the federal government, granting the states complete sovereignty and the retention of every power not "expressly" surrendered by the states in the Articles. The states actually surrendered very few powers to the new central government, and therein lies the problem: The central government was left almost completely at the mercy of the states when it came to passing measures necessary for the nation's survival--and the nation nearly fell apart as a result. It didn't take long to realize that the Articles of Confederation needed serious revision. This was the original purpose of the convention called in Philadelphia in 1787.

Instead, the delegates wisely saw that the situation called for the scrapping of the Aricles and the the creation of a brand new framework of government, the Constitution. The new document almost failed to secure ratification, however, due to the objections of the states' righters that it granted too much power to the central government at the expense of the states. A primary issue was a particular section of Article I, the Necessary and Proper Clause, attached to the end of Section 8, which granted to Congress the right to pass all legislation necessary for the enforcement of the Constitution; under the Articles of Confederation, enforcement had been left to the states. In order to succeed, the proponents of the Constitution, known as the Federalists, agreed to the passage of a Bill of Rights which, the opposition (known as the anti-Federalists) hoped, would strangle the central government once again.

The amendments that were ultimately passed, ten in all, generally mirrored provisions contained in the constitutions of the individual states, representing the most basic rights enjoyed by the citizens. The amendments, most likely written by James Madison, then serving Virginia in the House of Representatives, answered most of the objections of the anti-Federalists over the powers of the federal government. The last of these amendments, known as the Reserved Powers Amendment, was an attempt to deal with objections to the Necessary and Proper Clause of Article I. "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," said the amendment. The anti-federalists (to whom Madison, under the influence of Thomas Jefferson, later attached himself) could walk away satisfied.

Or could they? Sometimes history can turn on seemingly simple, mundane things, like the the ommission of a single word from a document. That was the case with the Tenth Amendment, from which a single word, "expressly" was missing that had been included in Article II of the Articles of Confederation. The inclusion of this word might have altered the course of the next 200 years.

The first real indicator of the weakness of the Tenth Amendment came in 1819. The Supreme Court, in its landmark decision in McCulloch vs. Maryland, turned aside the state of Maryland's attempt to tax the new Bank of the United States, citing the Constitution's Necessary and Proper Clause and turning aside the state's arguments based on the Tenth Amendment. The Constitution itself later weakened the amendment further, because of a clause that has been a part of seven of the last 15 amendments which runs something like, "The Congress shall have power to enforce this article by appropriate legislation." The effects of this clause alone would have served the purposes of the Necessary and Proper clause even if that provision had never been in the Constitution, and it further renders the reserved powers provisions of the Tenth Amendment a dead letter.

The Constitution grants the branches of the federal government a wide array of powers, so many (stated in a such a broad fashion as to allow broad interpretation of their scope) that one question needs to be asked: Why was the Tenth Amendment deemed to be necessary in the first place? A good question, with a simple answer. The Tenth Amendment served basically the same function as the Ninth Amendment, to reassure the states and their citizens that the U.S. Constitution would not be used to deny them the rights they had grown accustomed to under their own respective state constitutions--such as the right to property, which in the antebellum period was a handy euphemism for slavery. In fact, the Tenth Amendment can be read as yet another of the many reassurances to slaveholders that the Constitution would continue to protect their human property. These reassurances are laced throughout the document, and after 1791, they became enshrined in the Bill of Rights as well.

So, one wonders, what good is the Tenth Amendment now? This is the tricky question debated by the Supreme Court since the 1970s. The Amendment was used in the past to limit federal authority, most notably when the Court declared the first federal income tax law unconstitutional--the Sixteenth Amendment and a Court decision in 1939 later reversed this ruling, though. The record has been mixed, with liberal majorities since the New Deal inclined to dilute the amendment. The trend in recent years has been more conservative, and the Roberts Court might start dealing more favorably with the Reserved Powers doctrine.

One final observation. Today's advocates for increasing the powers of the states at the expense of federal power have some strong arguments, but in some ways, the gradual decline in the significance of the Tenth Amendment has been beneficial. For if the amendment had been strictly adhered to, the legislative gains made by the civil rights movement would never have seen the light of day, and racial segregation would still be the law of the land.


Larry Allen Brown from Brattleboro Vermont on February 16, 2015:

Hi, I enjoyed your article. I'd like to add a few things that might shed some light on this controversial subject. You point to this:

"The Tenth Amendment served basically the same function as the Ninth Amendment, to reassure the states and their citizens that the U.S. Constitution would not be used to deny them the rights they had grown accustomed to under their own respective state constitutions--such as the right to property". I don't really agree with that. The 10th Amendment has been a source of confusion for some time.

The 9th is pretty clear.

Amendment IX

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment was designed to answer one objection to a bill of rights, which was that if some rights were written down, the government might claim that no other rights existed. Other rights do exist, the Ninth Amendment says. Don't deny them. And the fact that they haven't been written down, doesn't make them any less important. Don't disparage them either.

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So the practice of enforcing rights that aren't there in the words of the constitution can actually be justified by reference to those words. The Supreme Court protects individual rights that aren't listed in the Constitution. It does this under the due process clause, which makes the whole project look a little less sensible than it might if the court said, this is based on the privileges or immunities clause and the Ninth Amendment.

Now, what about states' rights? You hear a fair amount about states' rights sometimes. When the federal government is doing things that people don't like, one of the arguments against it is usually something about states' rights. Southern States that tried to block efforts to desegregate would use the "states rights" argument and look to the 10th Amendment for justification, even though the 10th says nothing about "states rights".

The Constitution actually has very little to say about states' rights. It says that no state can be deprived of its two senators, and no state can be forced to give up territory without its consent. But, when people talk about states' rights, they tend to point not to those provisions, but to the Tenth Amendment. That says that the powers not delegated to the federal government or prohibited to the states, are reserved to the states or the people.

Amendment X

"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 Supreme Court has at times relied on this as a source of states' rights. The federal government can't control the wages that states pay their employees at one set, or the hours that they work. Some essential state functions, it said, are immune from federal regulation. But it only said this for about ten years, from 1974 to 1985.

In 1985, it gave up on the idea of states' rights in the form of these immunities. Why? Because it couldn't figure out which states' rights were important enough to protect.

One thing to think about there, is whether states' rights and individual rights are different in important ways. States' rights are valuable only to the extent that they make individuals better off.

The Constitution is there for the benefit of "We the People", not we the states.

Here's something else to think about, the Tenth Amendment doesn't actually say anything about rights.

The Ninth Amendment does, it is about individual rights.

But the Tenth Amendment is about state powers, not states' rights.

The 9th Amendment is about individual rights. It was the response to the objection to a Bill of Rights, which was that if some rights were written down, the government might claim that others don't exist. The Ninth says that other rights DO exist and the fact that they haven't been written down doesn't deny them or make them less important.

The 10th Amendment refers to State Powers, NOT States Rights. The argument that there is such a thing as "States Rights" is baseless. There is nothing in the Constitution that refers to so-called, "states rights". Again the 10th refers to the Powers of the State. Powers and Rights are two different things.

The SCOTUS recent rulings have protected states powers. NOT states rights.The powers of the states belong to the States and not the Federal Government to use when it wants.

Again, I enjoyed your Hub and want to read more.

conradofontanilla from Philippines on July 06, 2011:

State's right being supreme over the federation has proven to be the downfall of the South in the American Civil War. The South had a constitution that made the state's more sovereign over the Confederacy. So each had its own small army, resisted taxation, and gave little rope to the president like "item veto."

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