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The final entry in the U.S. Bill of Rights, the Tenth Amendment, contains what appears to be a straightforward declaration: “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.”
At its core, this amendment is the constitutional foundation of federalism, the uniquely American system of dividing power between a central national government and individual state governments.
This is the story of that constitutional tug-of-war, a battle over the line between federal authority and state sovereignty that continues to define the United States.
In This Article
- Explains how the Tenth Amendment emerged from the conflict between Federalists and Anti-Federalists during ratification of the Constitution.
- Highlights the omission of the word “expressly” as a deliberate choice enabling implied federal powers.
- Traces how the Amendment reflects an ongoing tension between federal and state authority.
- Discusses the Supreme Court’s shifting interpretations, showing that the balance of power changes over time with political and judicial trends.
So What?
The Tenth Amendment remains a live constitutional issue because it defines the boundaries of federal authority. Understanding its history helps explain modern debates over states’ rights, from healthcare mandates to marijuana laws and education policy. The article shows that federalism’s tension—between unity and local control—isn’t a flaw in the system, but one of its enduring features.
The Founders’ Grand Compromise
The Tenth Amendment wasn’t an afterthought; it was the capstone of a bitter and foundational debate over the very soul of the new American republic. Its creation was a direct consequence of the clash between two opposing visions for the nation’s future, a compromise born from deep-seated fear and pragmatic necessity.
A Nation Divided: Federalists vs. Anti-Federalists
Following the Constitutional Convention of 1787, the proposed U.S. Constitution was sent to the states for ratification, igniting a fierce ideological battle between the Federalists and the Anti-Federalists.
The Anti-Federalists, a group that included prominent figures like Patrick Henry of Virginia and George Clinton of New York, were deeply suspicious of the new framework. They feared that the Constitution created a powerful, centralized national government that would be too distant and disconnected from the average citizen.
Their core anxiety was that this new federal entity would inevitably absorb the powers of the states, which they saw as the true guardians of the people’s freedom, and devolve into a form of tyranny.
Anti-Federalist writers, using pseudonyms like “Brutus” and “The Federal Farmer,” argued that a republic as vast as the United States couldn’t be governed effectively from a single capital without resorting to force. They warned that a small, distant legislature couldn’t possibly understand the diverse needs of the different states and that, without the voluntary support of the people, the government would have to rely on “an armed force to execute the laws at the point of the bayonet.”
Their most potent and successful argument, however, was that the Constitution lacked a bill of rights to explicitly protect individual liberties such as freedom of speech and trial by jury.
In response, the Federalists, led by Alexander Hamilton and James Madison, mounted a vigorous defense of the Constitution. They argued that a stronger national government wasn’t a threat to liberty but was essential for the nation’s survival, especially after the manifest failures of the weak central government under the Articles of Confederation.
They contended that the Constitution already contained built-in safeguards against tyranny, such as the separation of powers among the three branches of government and a system of checks and balances.
Initially, Federalists like Hamilton argued that a bill of rights was unnecessary and even dangerous. Since the federal government had only limited, enumerated powers, they reasoned, it had no authority to infringe on rights like freedom of the press in the first place. Why, Hamilton asked, “declare that things shall not be done, which there is no power to do?”
This argument failed to persuade the state ratifying conventions. The Anti-Federalist demand for a bill of rights resonated powerfully, and several states agreed to ratify the Constitution only on the condition that one would be added immediately.
This pressure led to the crucial compromise: the Federalists promised to introduce a bill of rights in the first Congress. The Tenth Amendment was the pinnacle of this effort, drafted specifically to address the Anti-Federalists’ primary fear of an overreaching federal government by explicitly reserving non-delegated powers to the states and the people.
“All is Retained Which Has Not Been Surrendered”
The text of the Tenth Amendment was carefully crafted to confirm the understanding that the federal government was one of limited and enumerated powers. Its purpose was to “allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”
However, a subtle but momentous decision during its drafting process set the stage for centuries of debate.
The Articles of Confederation, the governing document the Constitution replaced, had a similar provision which stated that each state retained every power “which is not by this confederation expressly delegated to the United States.” The word “expressly” created a rigid straitjacket, preventing the Continental Congress from exercising any powers not explicitly spelled out, which proved to be a critical weakness.
During the debate over the Tenth Amendment in the First Congress, a motion was made to insert the word “expressly” before “delegated.” The motion was defeated.
This omission was a deliberate and brilliant Federalist victory. James Madison, a key architect of the Constitution and the Bill of Rights, argued forcefully against including “expressly.” He understood that no constitution could possibly detail every single power a government might need to function effectively.
By leaving the word out, Madison and the Federalists ensured that the federal government would possess not only its enumerated powers but also “implied powers”—those that aren’t explicitly listed but are necessary to carry out its designated functions.
During the debate, Madison made his position crystal clear: “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”
This created a fundamental tension that exists to this day. The Tenth Amendment was enacted to satisfy opponents of a strong federal government who feared the exercise of unwritten powers. Yet its final text was intentionally worded to permit the very existence of those implied powers.
This compromise, which was essential for the Constitution’s ratification, didn’t resolve the conflict over federalism; it enshrined it directly into the text of the Bill of Rights, guaranteeing that the battle over the limits of Washington’s authority would be a permanent feature of American law and politics.
The Judicial Tug-of-War: How the Supreme Court Defined Federal Power
The meaning and force of the Tenth Amendment have never been static. Instead, its power has ebbed and flowed with the changing tides of the nation’s history and the shifting philosophies of the Supreme Court. The Court’s interpretation has acted as a constitutional barometer, reflecting the prevailing view on the proper balance between federal and state authority.
This judicial journey has been a winding one, moving from a position that rendered the amendment almost meaningless to one that gives it sharp, if narrow, teeth.
The Marshall Court and the “Truism” Doctrine
The first major test of the Tenth Amendment came in the landmark case of McCulloch v. Maryland (1819). The case centered on two critical questions: First, did Congress have the authority to charter a national bank, a power not explicitly listed in the Constitution? Second, could the state of Maryland tax that bank?
Chief Justice John Marshall, a staunch advocate for a strong national government, delivered a unanimous opinion that decisively strengthened federal power. On the first question, Marshall argued that the power to create a bank, while not enumerated, was an implied power derived from the Necessary and Proper Clause of the Constitution (Article I, Section 8).
This clause grants Congress the authority to “make all Laws which shall be necessary and proper for carrying into Execution” its enumerated powers, such as the power to tax, borrow money, and regulate commerce.
When Maryland’s lawyers invoked the Tenth Amendment to argue that powers not enumerated were reserved to the states, Marshall forcefully dismissed the claim. He pointed directly to the framers’ deliberate decision to omit the word “expressly” from the amendment’s text.
He wrote that the amendment “thus leav[es] the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole [Constitution].”
In doing so, Marshall established what became known as the “truism” doctrine: the Tenth Amendment doesn’t create new limits on federal power or grant new powers to the states. It simply restates the existing constitutional relationship, confirming the “truism that all is retained which has not been surrendered.”
From Laissez-Faire to the New Deal
Despite Marshall’s powerful opinion, the Supreme Court in the late 19th and early 20th centuries did, at times, use the Tenth Amendment as a tool to strike down federal laws. During this laissez-faire era, the Court invalidated federal economic regulations, including laws prohibiting child labor, on the grounds that they were unconstitutional invasions of the “police power” reserved to the states.
This view was dramatically swept away by the crisis of the Great Depression and the rise of President Franklin D. Roosevelt’s New Deal. After initially resisting the expansion of federal authority, the Supreme Court reversed course.
The pivotal case was United States v. Darby (1941), which concerned the constitutionality of the Fair Labor Standards Act, a federal law setting minimum wages and maximum hours. The Court, in a decision that explicitly echoed Marshall’s logic from McCulloch, upheld the law.
Justice Harlan Fiske Stone, writing for the Court, declared that the Tenth Amendment “states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory.”
The Darby decision was so definitive that for nearly four decades, the Tenth Amendment essentially vanished from constitutional law, widely considered to be a dead letter.
The Pendulum Swings Back: State Sovereignty’s Brief Revival
Just when the Tenth Amendment seemed to be permanently dormant, the Supreme Court unexpectedly revived it in the 1976 case National League of Cities v. Usery. In a sharply divided decision, the Court ruled that Congress couldn’t use its commerce power to apply federal minimum wage and overtime laws to state and local government employees.
The majority argued that the Tenth Amendment created an implicit protection for state sovereignty, preventing Congress from impairing the states’ “ability to function effectively in a federal system” by regulating their “traditional governmental functions.”
This revival, however, proved to be short-lived. The “traditional governmental functions” test was notoriously difficult to apply. Courts struggled to define what constituted a “traditional” function in a consistent way, leading to confusing and contradictory rulings. The test was ultimately deemed “impractical and doctrinally barren.”
Less than a decade later, in Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme Court explicitly overruled National League of Cities. The majority opinion, written by Justice Harry Blackmun, argued that the primary protection for state sovereignty was not judicial enforcement of the Tenth Amendment, but rather the political process itself.
Because states are represented in the House and Senate, the argument went, the federal system has its own built-in safeguards to prevent congressional overreach. Garcia sent the Tenth Amendment back into hibernation, seemingly for good.
The Modern Limit: The Anti-Commandeering Doctrine
The modern era of Tenth Amendment jurisprudence began with another surprising shift in the 1990s. The Supreme Court, rather than trying to define protected areas of state policy, developed a new, more durable limit on federal power grounded in the structure of government itself: the anti-commandeering doctrine.
This principle first emerged in New York v. United States (1992). The case involved a federal law aimed at managing low-level radioactive waste. The law gave states a choice: either regulate the waste according to federal guidelines or take title to the waste and become liable for it. The Court found this “choice” to be unconstitutional.
Justice Sandra Day O’Connor wrote that while Congress could regulate the waste directly under its Commerce Clause power, it couldn’t “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
The Court extended this doctrine five years later in Printz v. United States (1997). This case challenged a provision of the Brady Handgun Violence Prevention Act that required local chief law enforcement officers (CLEOs) to perform background checks on prospective gun purchasers. The Court ruled that this provision violated the Tenth Amendment.
Just as the federal government can’t compel state legislatures to enact federal policy, it also can’t press state executive officials into service to “administer or enforce a federal regulatory program.”
The anti-commandeering doctrine represents the most significant and lasting modern interpretation of the Tenth Amendment. It doesn’t protect what states do (their policy choices in specific areas) but rather protects the integrity of their governmental machinery.
It ensures that state officials are accountable to their own constituents, not to federal bureaucrats. This structural rule has proven far more stable and workable for courts than the vague “traditional governmental functions” test it replaced, and it stands today as the primary way the Tenth Amendment functions as a check on federal power.
Table: Key Supreme Court Cases on Federal vs. State Power
| Case | Year | Key Constitutional Clause(s) | Summary of Ruling and Significance |
|---|---|---|---|
| McCulloch v. Maryland | 1819 | Necessary and Proper, Supremacy | Upheld federal power to create a national bank; established implied powers and federal supremacy, treating the 10th Amendment as a non-limitation on granted powers. |
| Wickard v. Filburn | 1942 | Commerce | Dramatically expanded Congress’s power under the Commerce Clause to regulate even local, non-commercial activity if it has a substantial aggregate effect on interstate commerce. |
| National League of Cities v. Usery | 1976 | 10th Amendment, Commerce | Revived the 10th Amendment as a substantive limit, ruling Congress could not regulate “traditional governmental functions” of states (e.g., wages of state employees). |
| Garcia v. SAMTA | 1985 | 10th Amendment, Commerce | Overturned National League of Cities, holding that the primary limits on federal power over states are found in the political process, not judicial review. |
| United States v. Lopez | 1995 | Commerce | First case in decades to strike down a federal law as exceeding the Commerce Clause, signaling a renewed focus on the limits of federal power and protecting state police powers. |
| Printz v. United States | 1997 | 10th Amendment | Established the “anti-commandeering” doctrine, ruling the federal government cannot compel state executive officials to enforce federal law. |
| NFIB v. Sebelius | 2012 | Commerce, Taxing Power, Spending Power | Upheld the ACA’s individual mandate under the taxing power but rejected the Commerce Clause justification; limited federal power to coerce states into Medicaid expansion under the Spending Power, a principle related to federalism. |
Constitutional Pressure Points: Where Federal and State Powers Collide
The Tenth Amendment doesn’t exist in a constitutional vacuum. Its power and relevance are defined by its relationship with other, more assertive clauses that grant power to the federal government. The true battle over federalism is often fought not on the ground of the Tenth Amendment itself, but in the interpretation of these key “pressure points” that determine the extent of Washington’s reach.
The broader these federal powers are read, the smaller the domain of powers “reserved to the States” becomes.
The Expansive Reach of the Commerce Clause
The single most significant source of federal power—and thus the most frequent point of conflict with the Tenth Amendment—is the Commerce Clause. Found in Article I, Section 8, Clause 3 of the Constitution, it gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The interpretation of this clause has swung between two extremes, dramatically altering the federal-state power balance.
For much of the 20th century, the Supreme Court adopted an incredibly broad view of this power, culminating in the 1942 case Wickard v. Filburn. In Wickard, the Court upheld a federal law that penalized a farmer, Roscoe Filburn, for growing more wheat than he was allotted, even though the excess wheat was for his own personal consumption on his farm and would never be sold or enter the stream of commerce.
The Court’s reasoning was that while Filburn’s individual actions were trivial, the cumulative effect of thousands of farmers doing the same thing would “exert a substantial economic effect on interstate commerce” by reducing overall market demand. This “aggregation doctrine” gave Congress the authority to regulate almost any activity, no matter how local, if it could be linked in the aggregate to the national economy.
This expansive view held for over half a century until the landmark decision in United States v. Lopez (1995). In Lopez, the Court struck down the federal Gun-Free School Zones Act, which made it a federal crime to possess a firearm in a school zone.
For the first time since the New Deal, the Court ruled that Congress had exceeded its authority under the Commerce Clause. The majority reasoned that possessing a gun near a school was not an “economic activity” and had no substantial relationship to interstate commerce.
Chief Justice William Rehnquist warned that accepting the government’s argument—that gun violence affects the economy by increasing insurance costs and reducing educational productivity—would erase any meaningful distinction “between what is truly national and what is truly local.” This would effectively “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States” under the Tenth Amendment.
Lopez thus explicitly tied the limits of the Commerce Clause to the need to preserve the states’ reserved powers.
The Necessary and Proper Clause: The Engine of Implied Powers
The Necessary and Proper Clause, found in Article I, Section 8, Clause 18, is the constitutional engine of federal power. It gives Congress the authority “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
As Chief Justice Marshall established in McCulloch v. Maryland, this clause is not an independent grant of power but an amplifier for all of Congress’s other enumerated powers. It grants Congress broad discretion to choose the reasonable means to achieve its constitutional ends.
This clause is inherently in tension with a strict reading of the Tenth Amendment. When Congress passes a law that states believe infringes on their reserved powers, the federal government often justifies the action as a “necessary and proper” means of executing one of its enumerated powers, like regulating commerce or providing for national defense.
If the Court agrees that the law is a valid exercise of this implied power, the Tenth Amendment can’t stand in its way. The powers reserved to the states don’t include the power to obstruct the legitimate exercise of powers delegated to the federal government.
The Supremacy Clause: The Ultimate Trump Card
The Supremacy Clause, located in Article VI, Clause 2, is the ultimate arbiter in conflicts between federal and state law. It declares that the Constitution, and federal laws and treaties “made in Pursuance thereof… shall be the supreme Law of the Land.”
This clause clarifies a critical point about federalism: the Tenth Amendment doesn’t give states the right to “nullify” or ignore federal laws they dislike.
The constitutional analysis must proceed in a specific order. First, one must ask if the federal government has the authority to act under one of its delegated or implied powers. This is where the debates over the Commerce Clause and the Necessary and Proper Clause take place.
If the answer to that first question is “yes”—if the federal law is a valid exercise of constitutional authority—then the Supremacy Clause dictates that the federal law prevails over any conflicting state law. If the answer is “no,” then the power is, by default, reserved to the states or the people under the Tenth Amendment.
The Supremacy Clause ensures that once a power is determined to be federal, its exercise can’t be thwarted by the states.
The interplay of these clauses reveals a crucial dynamic. The Tenth Amendment’s sphere of influence isn’t fixed; it’s a residual category of powers. Its strength is inversely proportional to the scope of federal authority.
The real constitutional battles are therefore rarely about the Tenth Amendment in isolation. They are battles over the meaning of “commerce,” the definition of “necessary and proper,” and the fundamental question of what powers were, in fact, “delegated to the United States” in the first place.
The Tenth Amendment in Action: Modern Policy Battlegrounds
The centuries-long debate over the Tenth Amendment isn’t merely an abstract constitutional theory; it has profound and tangible consequences for public policy and the daily lives of Americans. The line between federal and state authority is constantly being negotiated in arenas ranging from the classroom to the environment and from the doctor’s office to the cannabis dispensary.
These modern policy battlegrounds illustrate how the principles of federalism, state sovereignty, and federal power collide in the 21st century.
Education Standards: Cooperative Federalism and Conditional Spending
Education has long been considered a quintessential state and local responsibility. The U.S. Constitution is silent on the matter, meaning that under the Tenth Amendment, the power to establish and operate schools is reserved to the states.
State and local governments provide the overwhelming majority—typically around 90%—of the funding for elementary and secondary education and retain control over core issues like curriculum, graduation requirements, and teacher certification.
Despite this, the federal government exercises significant influence through its spending power. Washington provides billions of dollars in grants to states through laws like the Elementary and Secondary Education Act (ESEA), most recently reauthorized as the Every Student Succeeds Act (ESSA).
This funding, however, comes with conditions. To receive federal money, states must agree to implement certain policies, such as administering annual academic assessments and adopting accountability systems for low-performing schools.
This model is often described as “cooperative federalism.” It’s not a direct command, which would be unconstitutional under the anti-commandeering doctrine. States are theoretically free to reject the federal funds and the attached strings.
In reality, the vast sums of money involved make it politically and fiscally difficult for states to refuse, giving Washington a powerful lever to shape national education policy without directly violating the Tenth Amendment.
Environmental Regulations: A Race to the Bottom or Laboratories of Democracy?
Environmental policy presents another classic federalism dilemma. The regulation of land use and the protection of natural resources are traditionally considered state police powers reserved by the Tenth Amendment. However, environmental problems like air and water pollution don’t respect state borders.
A factory in one state can pollute the air and water of its neighbors, creating an interstate problem that falls squarely within the federal government’s authority under the Commerce Clause.
This has led to a system of cooperative federalism similar to that in education. The federal Environmental Protection Agency (EPA) sets national baseline standards for environmental quality under landmark statutes like the Clean Air Act and the Clean Water Act.
The states are then responsible for developing and implementing State Implementation Plans (SIPs) to meet or exceed those standards.
This division of labor fuels an ongoing debate. Proponents of strong federal control argue that it’s necessary to prevent a “race to the bottom,” in which states might competitively weaken their environmental standards to attract businesses and economic investment.
Conversely, proponents of state control champion the idea of states as “laboratories of democracy,” a concept famously articulated by Supreme Court Justice Louis Brandeis. In this view, states can experiment with innovative policies tailored to their unique local conditions without imposing a one-size-fits-all solution on the entire nation.
Healthcare Mandates: The Affordable Care Act
The Patient Protection and Affordable Care Act (ACA) of 2010 triggered one of the most significant Tenth Amendment showdowns of the modern era. Two key provisions of the law were challenged on federalism grounds.
First, opponents argued that the law’s “individual mandate”—a requirement that most Americans obtain health insurance or pay a penalty—was an unconstitutional overreach of the Commerce Clause that infringed on powers reserved to the states and the people.
In the landmark case National Federation of Independent Business v. Sebelius (2012), the Supreme Court agreed with this part of the challenge. The Court held that the Commerce Clause gives Congress the power to regulate existing economic activity, but not the power to compel individuals to enter into commerce by buying a product.
This ruling was a major affirmation of the principle that federal powers are limited and that the Tenth Amendment reserves a sphere of individual liberty and state authority that Congress can’t invade. (The Court ultimately upheld the mandate on separate grounds, as a constitutional exercise of Congress’s taxing power.)
Second, the Court addressed the ACA’s massive expansion of the Medicaid program. The law originally required states to expand their Medicaid eligibility or risk losing all of their existing federal Medicaid funding. The Court found this to be unconstitutionally coercive.
While Congress can use its spending power to encourage states to adopt certain policies, it can’t put a “gun to the head” of the states. Threatening to revoke existing funds, which constituted a massive portion of state budgets, crossed the line from persuasion to compulsion, violating principles of federalism.
The ruling made the Medicaid expansion effectively optional for states, another significant victory for state sovereignty.
Marijuana Legalization: A Direct Standoff
Perhaps the clearest and most dynamic contemporary example of the Tenth Amendment’s power is the ongoing conflict between federal and state marijuana laws. Under the federal Controlled Substances Act, marijuana is classified as a Schedule I drug, making its possession, cultivation, and distribution illegal nationwide.
Despite this federal prohibition, a majority of states have legalized cannabis for either medical or recreational use, creating a direct and open conflict of law. Under the Supremacy Clause, federal law enforcement agencies like the Drug Enforcement Administration (DEA) retain the authority to raid cannabis businesses and prosecute individuals who are in full compliance with state law.
However, the Tenth Amendment’s anti-commandeering doctrine provides a crucial shield for the states. The federal government can’t force state and local police to enforce the federal ban on marijuana. Because the federal government lacks the resources to police every local cannabis offense on its own, this prohibition on commandeering state officials has created the practical space for state-level cannabis markets to emerge and thrive.
States have become true “laboratories of democracy” on this issue, developing a wide array of regulatory and taxation models. This ongoing standoff demonstrates the modern power of the Tenth Amendment not as a tool to nullify federal law, but as a structural principle that protects a state’s right to choose its own policy path by refusing to participate in the enforcement of a conflicting federal one.
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