How the Founders Created an Insurance Policy Against Federal Power With the Tenth Amendment

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The Tenth Amendment to the United States Constitution is a marvel of brevity. In a single, powerful sentence, it lays out a foundational principle of American government: “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.”

These words are the constitutional embodiment of a hard-won compromise, an “insurance policy” demanded by a generation of leaders who deeply feared that the new federal government they were creating might one day become the very tyranny they had just overthrown.

Ratified on December 15, 1791, as the capstone of the Bill of Rights, the Tenth Amendment captures the central, ongoing tension of American governance: the perpetual balancing act between the need for a strong, effective national government and the desire to protect the sovereign rights of the states.

The Crisis That Started It All

To understand why the Tenth Amendment was considered so essential, one must first understand the system it was designed to correct. The United States’ first attempt at a national government, the Articles of Confederation, was a direct reaction against the powerful, centralized monarchy of Great Britain. The result was a government so weak it threatened the survival of the young republic.

A Nation Adrift Under the Articles

Adopted in 1777 and fully ratified in 1781, the Articles of Confederation created not a unified nation but a “firm league of friendship” among thirteen independent and sovereign states. This structure was intentional, born from a profound fear of consolidated power.

Under the Articles, the vast majority of power remained with the states. The national government consisted of a single body, the Confederation Congress, in which each state, regardless of its size or population, had one vote.

This Congress possessed a handful of authorities—it could declare war, negotiate treaties, and manage relations with Native American tribes—but it lacked the fundamental tools of governance. Critically, it had no power to levy taxes, no authority to regulate interstate commerce, and no ability to compel states to obey its own laws or international treaties.

The legislative process itself was crippled by inefficiency. Passing any significant measure required the consent of nine of the thirteen states, and amending the Articles required a unanimous vote, granting any single state an effective veto over national reform.

The result was a government that commanded, in the words of the Library of Congress, “little respect and no support from state governments anxious to maintain their power”.

Economic Chaos and Diplomatic Humiliation

The structural weaknesses of the Articles quickly led to near-catastrophe. The most pressing problem was financial. Having accumulated a massive debt to fund the Revolutionary War, the national government was effectively bankrupt.

Without the power to tax, Congress could only request funds from the states—requests that were almost universally ignored. By 1786, the U.S. Board of Treasury issued a dire warning that without immediate funds, the nation faced “…nothing…can rescue us from Bankruptcy, or preserve the Union of the several States from Dissolution.”

The national currency, the “Continental,” had become so devalued it was essentially worthless, giving rise to the phrase “not worth a Continental.”

This economic disorganization was compounded by an inability to manage trade. Congress could not negotiate effective trade agreements with foreign powers, nor could it regulate commerce between the states. States engaged in self-destructive economic warfare, imposing their own tariffs on goods from neighboring states.

Foreign powers eagerly exploited this disunity. Great Britain flooded American markets with cheap manufactured goods, crippling domestic producers, and barred American ships from the lucrative trade routes of the British West Indies.

This feebleness translated into a series of diplomatic humiliations. The United States was unable to enforce the terms of its own peace treaty with Great Britain. The 1783 Treaty of Paris required the U.S. to restore property to Loyalists and ensure pre-war debts were paid, but Congress could not compel the states to comply. In response, Britain refused to vacate its military forts in the Northwest Territory, maintaining a threatening presence on American soil.

Spain, another wartime ally, closed the Mississippi River to American navigation in 1784, devastating the economy of the western frontier. The Confederation Congress lacked the diplomatic leverage to resolve the dispute, highlighting its inability to protect vital national interests.

To further underscore the nation’s vulnerability, American merchant ships, no longer protected by the British Royal Navy, became easy prey for pirates along North Africa’s Barbary Coast. Without a navy or the funds to pay tribute, the government could do little to protect its maritime commerce.

These experiences convinced leaders like James Madison of the “futility and weakness of confederacies of independent states”.

The Tipping Point: Shays’ Rebellion

The cascade of failures under the Articles—from financial ruin to diplomatic impotence—created a vicious cycle. The lack of taxing power prevented the government from paying its debts, including those owed to the very soldiers who had fought for independence.

This financial instability, combined with the inability to manage trade, plunged the nation into a severe economic depression that hit farmers particularly hard. Facing high state taxes and crushing debt, many farmers in western Massachusetts were threatened with imprisonment and the loss of their lands.

In the fall of 1786, these simmering tensions boiled over. Led by Daniel Shays, a decorated Revolutionary War captain, armed farmers began forcibly shutting down debtor courts to prevent foreclosures. In early 1787, they attempted to seize the federal armory in Springfield, Massachusetts.

The national government was utterly powerless to respond. It had no army and no money to raise one. The rebellion was ultimately put down not by the U.S. government, but by a private militia funded by wealthy merchants from Boston.

Shays’ Rebellion was the final, terrifying confirmation of the Articles’ failure. It sent a shockwave through the American elite, confirming their worst fears that the nation was teetering on the brink of anarchy. An embellished press reported on “hordes of vicious outlaws descending upon innocent citizens,” creating a palpable sense of crisis.

George Washington, in a letter to James Madison, lamented the spectacle: “What a triumph for our enemies…to find we are incapable of governing ourselves.”

The rebellion provided the final, urgent impetus for the convention scheduled to meet in Philadelphia in May 1787. The goal was no longer to simply amend the Articles; it was to save the republic from collapse. As George Mason wrote to his son, “The Eyes of the United States are turned upon this Assembly and their Expectations raised to a very anxious Degree”.

“I Smelt a Rat”: The Great Debate Over Federal Power

The Constitutional Convention of 1787 produced a radical new plan for government, one that proposed a powerful central authority with three branches, the power to tax, and supremacy over the states. This proposal ignited an intense, year-long ideological battle across the country, pitting two opposing camps—the Federalists and the Anti-Federalists—against each other in a debate that would define the very nature of American power.

The Federalist Vision: A Strong, Unified Nation

The proponents of the new Constitution, known as the Federalists, were led by figures like Alexander Hamilton, James Madison, and John Jay. They argued that the failures of the Articles of Confederation proved the absolute necessity of a strong, energetic national government capable of providing for the common defense, regulating commerce, and commanding respect on the world stage.

To win over a skeptical public, particularly in crucial states like New York and Virginia, Hamilton, Madison, and Jay penned a series of 85 essays under the pseudonym “Publius.” These essays, now known as The Federalist Papers, provided a systematic and brilliant defense of the proposed Constitution.

They argued that the new government was not a threat to liberty but its greatest protector. They explained that the system of separation of powers and checks and balances would prevent any one branch from becoming too powerful, while the principle of federalism would preserve a vital role for the states.

In the famed Federalist No. 10, Madison tackled the widespread fear of political factions, arguing that in a large, diverse republic, no single faction could easily gain a majority and oppress the others. The very size and diversity of the nation would be a check on tyranny.

The Anti-Federalist Fear: A Return to Tyranny

Opposing them were the Anti-Federalists, a diverse group that included prominent revolutionaries like Patrick Henry and George Mason, as well as small farmers, shopkeepers, and laborers. Their opposition was rooted in a deep-seated fear of distant, centralized power—the very kind of power they had fought a war to escape.

They believed the Constitution created a “consolidated government” that would eventually absorb the states and trample on individual liberties.

Patrick Henry of Virginia, a magnetic orator, famously refused to attend the convention, declaring he “smelt a rat.” He correctly suspected that Madison and his allies intended to subvert the authority of the state legislatures, which Henry and many others believed were the “chief protection for personal liberties”.

Anti-Federalists saw threats everywhere in the new document. They feared the new president could evolve into a monarch, that the new federal judiciary would overwhelm state courts, and that Congress, armed with the vague “necessary and proper” clause and the formidable Supremacy Clause, could seize almost unlimited power.

The Supremacy Clause, which declares federal law “the supreme Law of the Land,” was particularly alarming, with some critics arguing it would lead to the “complete consolidation of all of the states into one.”

The Dealbreaker: The Demand for a Bill of Rights

The Anti-Federalists’ most powerful argument against the Constitution was its glaring omission: a bill of rights. Having just fought for their rights against an oppressive government, they were unwilling to ratify a new one that did not explicitly guarantee fundamental freedoms like speech, religion, and trial by jury.

George Mason, who had authored Virginia’s influential Declaration of Rights, refused to sign the Constitution in part because it lacked such protections.

The Federalists initially dismissed this concern as unnecessary and even dangerous. Alexander Hamilton argued in Federalist No. 84 that since the federal government was only granted specific, enumerated powers, it had no authority to infringe on rights in the first place. “Why declare that things shall not be done,” he asked, “which there is no power to do?”

They warned that any list of rights would inevitably be incomplete, and the omission of a right could be used as a pretext to claim that it was not protected.

But the Anti-Federalist argument resonated powerfully with the public. The debate was not merely about the amount of government power, but about the fundamental location of sovereignty. The Federalists envisioned a system of dual sovereignty, where the federal government and state governments were each supreme in their own spheres.

The Anti-Federalists, however, clung to a more traditional view where the states were the primary sovereigns, and they saw the lack of a Bill of Rights as proof that the new Constitution would annihilate state power.

In state after state, ratification came down to the wire. To secure victory in key states like Massachusetts, New York, and Virginia, the Federalists were forced to make a crucial promise: they agreed that once the Constitution was ratified, the first act of the new Congress would be to consider amendments that would become a Bill of Rights.

This compromise—this deal—was what made the Constitution possible. The Tenth Amendment would become the ultimate expression of that deal, the insurance policy guaranteeing that the states would retain their vital role in the new republic.

The Insurance Policy: Forging the Tenth Amendment

With the Constitution ratified, James Madison, now a member of the new House of Representatives, made good on the Federalists’ promise. He drafted a series of amendments based on the proposals from the state ratifying conventions.

Ten of these were ultimately ratified by the states in 1791, becoming the Bill of Rights. The first eight protected specific individual liberties, such as freedom of speech and religion. The Ninth and Tenth Amendments were different; they were structural, designed to clarify the very nature of the new government and its relationship with the states and the people.

The Tenth Amendment was the capstone, intended to put to rest the Anti-Federalists’ greatest fear of an all-powerful national government.

The Text and Its Meaning

The amendment’s language is a model of clarity: “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.”

This text performs two critical functions. First, it confirms the principle of enumerated powers: the federal government can only exercise those powers specifically granted to it in the Constitution. Second, it establishes the principle of reserved powers: all powers not granted to the federal government (and not forbidden to the states) are kept by the states or by the people themselves.

Together, these principles define the American system of federalism, the constitutional division of power between the national and state governments.

The Ghost of “Expressly”

A crucial detail in the forging of the Tenth Amendment lies in a single word that is not there: “expressly.” The Articles of Confederation had contained a similar provision, but it stated that each state retained every power “not by this confederation expressly delegated to the United States.”

This word, “expressly,” strictly limited the national government to only those powers explicitly written down.

During the congressional debate on the Tenth Amendment, Anti-Federalist sympathizers moved to insert “expressly” into the text, which would have severely constrained the new federal government. The motion was defeated.

James Madison argued forcefully against its inclusion, stating that “it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia.”

This deliberate omission was a monumental victory for the Federalist vision of a more flexible and powerful national government. It ensured that the Constitution would be interpreted as a document granting not only enumerated powers but also implied powers—those powers necessary to carry out the enumerated ones.

This seemingly minor linguistic choice would have profound consequences, as it directly paved the way for Chief Justice John Marshall’s landmark ruling in McCulloch v. Maryland and the entire subsequent history of an expanding federal government. The modern American state, with its vast regulatory agencies and broad reach, was in many ways made possible by the decision not to include that one word.

Table: Enumerated vs. Reserved Powers

A “Truism” with Teeth?

From its ratification, the Tenth Amendment has been subject to two competing interpretations. For much of American history, the dominant view, articulated most famously by the Supreme Court, was that the amendment is a “truism.”

It doesn’t grant any new rights or powers but simply restates a relationship that already existed in the Constitution: “all is retained which has not been surrendered” (United States v. Darby).

From this perspective, the real constitutional question is never about the Tenth Amendment itself, but about whether a power was delegated to the federal government in the first place.

However, a competing view holds that the amendment is far more than a simple restatement. It is seen as the cornerstone of states’ rights, a vital constitutional check on federal overreach, and an active rule of interpretation.

This view argues that the amendment serves as a constant reminder that any exercise of federal power must be affirmatively justified by a specific grant in the Constitution. In this light, the Tenth Amendment is not a passive truism but an active shield, protecting a sphere of state sovereignty from federal intrusion.

This debate over the amendment’s true meaning—is it a simple reminder or a powerful restraint?—has been at the heart of its long and contentious journey through the Supreme Court.

The Amendment on Trial: A Supreme Court Pendulum

The history of the Tenth Amendment in the Supreme Court is a pendulum, swinging between periods of dormancy and moments of powerful revival. Its judicial interpretation has often served as a proxy for a larger battle over the proper scope of federal power, particularly Congress’s authority under the Commerce Clause and the Spending Clause.

The amendment’s perceived strength at any given time is typically an inverse reflection of the Court’s willingness to grant Congress broad authority under those other clauses.

Table: Key Supreme Court Interpretations of the 10th Amendment

The Marshall Court and Federal Power Expansion

For nearly a century after its ratification, the Tenth Amendment lay mostly dormant, overshadowed by the assertive nationalism of the Supreme Court under Chief Justice John Marshall. The pivotal case was McCulloch v. Maryland in 1819.

When Maryland attempted to tax the Second Bank of the United States, a federal institution, Marshall’s court issued a landmark ruling that profoundly shaped the balance of power. Marshall rejected Maryland’s argument that the power to create a bank was reserved to the states under the Tenth Amendment.

He pointedly noted the framers’ deliberate omission of the word “expressly” and argued that Congress possessed not only the enumerated powers listed in the Constitution but also implied powers necessary to carry them out. Because the bank was a “necessary and proper” means for Congress to execute its fiscal powers, it was constitutional.

Furthermore, Marshall declared that the states could not tax the bank, establishing the supremacy of federal law. This decision effectively neutered the Tenth Amendment as a significant check on federal authority, setting a precedent for a broad interpretation of federal power that would last for generations.

The New Deal and Commerce Clause Expansion

The Tenth Amendment experienced a brief resurgence in the early 20th century, as a more conservative Court used it to strike down federal economic regulations, most notably a law prohibiting child labor in Hammer v. Dagenhart (1918), on the grounds that it infringed on the states’ power to regulate local manufacturing.

However, this revival was short-lived. The Great Depression and President Franklin D. Roosevelt’s New Deal ushered in an era of unprecedented federal intervention in the economy.

After initially resisting some New Deal programs, the Supreme Court underwent a dramatic shift in 1937. In cases like National Labor Relations Board v. Jones & Laughlin Steel Corp., the Court began to interpret Congress’s power to regulate interstate commerce so broadly that it could reach almost any economic activity within a state.

This trend culminated in the 1941 case United States v. Darby. The Court, in upholding the federal Fair Labor Standards Act, unanimously overruled Hammer v. Dagenhart.

Writing for the Court, Chief Justice Harlan Fiske Stone famously dismissed the Tenth Amendment as “but a truism that all is retained which has not been surrendered.” This decision signaled the end of the Tenth Amendment as a meaningful judicial constraint on federal power.

For the next four decades, as the federal regulatory state grew, the amendment “essentially disappeared from U.S. Constitutional law”.

The “New Federalism” Revival

After decades in the constitutional wilderness, the Tenth Amendment was dramatically revived in the 1990s by a new generation of conservative justices committed to “New Federalism.” This revival did not seek to overturn the New Deal’s broad interpretation of the Commerce Clause.

Instead, it forged a new and powerful doctrine: “anti-commandeering.” This doctrine does not question if Congress has the power to regulate a certain area, but rather how it may exercise that power.

The first major case was New York v. United States (1992). The Court examined a federal law that required states to either regulate low-level radioactive waste according to federal standards or “take title” to the waste and become legally liable for it.

Justice Sandra Day O’Connor, writing for the majority, ruled that this “take-title” provision was unconstitutional. She argued that Congress could not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

While Congress could encourage states to act through financial incentives, it could not coerce them into becoming agents of the federal government. This, she concluded, was inconsistent with the Constitution’s division of authority, a division the Tenth Amendment was designed to protect.

Five years later, in Printz v. United States (1997), the Court extended this principle from state legislatures to state executive officials. The case involved a provision of the Brady Handgun Violence Prevention Act that required local chief law enforcement officers (CLEOs) to perform background checks on prospective gun buyers.

Justice Antonin Scalia, for the majority, declared this unconstitutional. He argued that forcing state officers to administer a federal program was “fundamentally incompatible with our constitutional system of dual sovereignty.”

This “commandeering” of the state executive branch, he wrote, would blur political accountability, allowing federal officials to take credit for the program while forcing state officials to bear the costs and public blame.

The modern Tenth Amendment, therefore, acts as a structural brake. It does not prevent Congress from creating a federal background check system, but it forces Congress to build, fund, and staff that system itself, rather than conscripting the states to do its work.

The Tenth Amendment Today: Modern Battlegrounds

The principles revived in the “New Federalism” era continue to shape American law and politics. The Tenth Amendment is no longer a forgotten “truism” but a central feature in many of the most contentious policy debates of our time. From healthcare and education to environmental rules and drug policy, the foundational struggle over the balance of power between the states and the federal government is as alive today as it was in 1787.

Healthcare: Mandates, Coercion, and Public Health

The Tenth Amendment and its related federalism principles were at the heart of the legal challenges to the Affordable Care Act (ACA) of 2010. In the landmark case National Federation of Independent Business v. Sebelius (2012), the Supreme Court examined the law’s Medicaid expansion.

The ACA required states to expand their Medicaid programs to cover more low-income adults. If a state refused, the law threatened to revoke all of its existing federal Medicaid funding, which for most states amounted to billions of dollars and a significant portion of their budgets.

A majority of the Court found this to be unconstitutionally coercive. Chief Justice John Roberts argued that this provision crossed the line from permissible encouragement to impermissible compulsion, leaving states with no real choice.

This threat, the Court reasoned, was a form of commandeering that violated the principles of federalism that the Tenth Amendment protects. The Court did not strike down the expansion itself, but it made participation voluntary by ruling that the federal government could not take away a state’s existing Medicaid funds for refusing to expand.

Separately, the Tenth Amendment undergirds the states’ traditional “police powers”—the inherent authority to protect the health, safety, and welfare of their citizens. This power became highly visible during the COVID-19 pandemic.

It was state and local governments, not the federal government, that had the primary authority to issue mask mandates, close businesses, and implement quarantines. This authority is rooted in a long line of Supreme Court precedent, dating back to Gibbons v. Ogden (1824), which recognizes public health as a core responsibility reserved to the states.

Education: Classrooms, Curricula, and Federal Dollars

Education has always been considered a quintessential reserved power of the states. State constitutions mandate the creation of public schools, and state and local governments provide over 90% of education funding.

They control nearly every aspect of schooling, from teacher certification and graduation requirements to textbook selection and curriculum standards.

Despite this, the federal government has steadily increased its influence since the 1960s, primarily through its Spending Clause power. By attaching conditions to federal education funds, Congress can incentivize states to adopt federal priorities.

This dynamic was at the center of the controversy over the Common Core State Standards. While technically a state-led initiative, the adoption of Common Core was heavily encouraged by the Obama administration’s “Race to the Top” grant program, which awarded points to states that adopted “college- and career-ready standards.”

Critics from both the left and right argued that this was a form of federal coercion that violated the spirit of the Tenth Amendment, creating a de facto national curriculum and undermining local control.

The backlash was significant, with several states withdrawing from the standards. In response, the Every Student Succeeds Act (ESSA), which replaced No Child Left Behind in 2015, included a provision explicitly prohibiting the federal government from attempting to “influence, incentivize, or coerce State adoption” of any specific academic standards.

This ongoing tension illustrates the delicate balance between the federal goal of ensuring equal educational opportunity and the states’ reserved power to manage their own schools.

Environmental Policy: A Patchwork of Regulation

Environmental protection is another area of intense federal-state conflict. While land use planning is a traditional power reserved to the states, major federal environmental laws like the Clean Air Act and the Clean Water Act set national minimum standards, justified under Congress’s broad authority to regulate interstate commerce.

This “cooperative federalism” model is a constant source of friction. States and industry groups frequently sue the Environmental Protection Agency (EPA), arguing that its regulations are an overreach that infringes on state authority over energy and land use, often invoking the Tenth Amendment in their legal challenges.

For example, challenges to the Obama-era Clean Power Plan argued that the EPA was “commandeering” states by forcing them to fundamentally restructure their energy sectors.

Conversely, states often use their reserved powers to enact environmental protections that are stricter than federal requirements. California, for instance, has long maintained its own vehicle emissions standards, which are tougher than the EPA’s.

This can lead to the opposite conflict, where the federal government may try to block or preempt stronger state laws, arguing they interfere with national economic or energy policy. The result is a complex and often contentious patchwork of regulation, with the Tenth Amendment serving as a legal shield for both sides of the debate.

Drug Legalization: States as “Laboratories of Democracy”

Perhaps no contemporary issue illustrates the principles and paradoxes of the Tenth Amendment more clearly than marijuana legalization. There is a direct and irreconcilable conflict between federal and state law.

The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug, making its cultivation, sale, and possession illegal nationwide. Yet, as of 2024, a vast majority of states have legalized cannabis for either medical or recreational use, creating state-regulated markets in defiance of federal law.

This standoff is a direct result of the modern Tenth Amendment’s anti-commandeering doctrine. While the federal government has the constitutional authority to enforce the CSA within any state—as affirmed by the Supreme Court in Gonzales v. Raich (2005)—it cannot force state and local police to enforce federal drug laws or compel state legislatures to keep marijuana illegal.

This creates a situation where an activity can be perfectly legal under state law but simultaneously a federal crime.

This legal gray area reveals a fundamental aspect of the modern Tenth Amendment: its power often lies in protecting a state’s right to inaction. It doesn’t grant Colorado the power to nullify federal law, but it does protect Colorado’s right not to participate in federal prohibition.

This institutionalizes the conflict, forcing its resolution out of the courts and into the political arena. The fragile peace is maintained not by a clear legal ruling, but by political workarounds: Department of Justice policies of prosecutorial discretion (like the 2013 Cole Memo) and annual congressional appropriations riders that prohibit the DOJ from using federal funds to interfere with state medical cannabis laws.

In this way, the Tenth Amendment creates the legal space for states to act as “laboratories of democracy,” pushing the boundaries of national policy and forcing a political reckoning on issues where a national consensus has yet to emerge.

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