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The Beguiling 10th Amendment

Throughout our nation’s history, the 10th Amendment to the Constitution has been misconstrued for the purpose of advancing state sovereignty at the expense of the Supremacy Clause. Some have invoked it as a second Supremacy Clause. The language of the Amendment is tantalizing for advocates of state powers broader than those actually vested in state government, but the text requires a close reading.

The 10th Amendment provides: “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.”

On occasion, pundits and politicians try to smuggle into the text the word, “expressly,” so as to make the clause read: “The powers not expressly delegated,” which would limit the authority of the federal government to the exercise of those powers expressly enumerated in the Constitution. But the fanciful wish for the incorporation of the word, “expressly,” does not change the actual language of the 10th Amendment. What explains these exercises in confusion and distortion?

History affords some explanation. The Articles of Confederation had provided greater protection to the states, which retained all powers except those “expressly delegated” to the national government. However, when James Madison introduced in the U.S. House of Representatives what would become the 10th Amendment on June 9, 1789, he avoided the incorporation of that phrase, which would have confined the national government to those powers expressly stated.

Rep. Thomas Tudor Tucker of South Carolina proposed the revival of the word “expressly,” but Madison and his supporters defeated the proposal to reinstate that fragment from the Articles of Confederation. On August 18, Madison stated: “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.” The functions and responsibilities of the federal government simply could not be delineated with such precision. On the strength of Madison’s leadership, Congress eliminated the word “expressly.”

Given the fact that the 10th Amendment does not limit the powers of the national government to those expressly granted what, then, is its function in our Constitutional system? Supreme Court decisions across two centuries reveal shifting doctrines that have shaped and re-shaped federal-state relations.

Until the death of Chief Justice John Marshall in 1835, the Court had exalted national authority at the expense of state authority. The Court’s expansive interpretation of federal power under the Supremacy Clause, Commerce Clause and the Necessary and Proper Clause left states in a clearly secondary position. But after Marshall’s death, the Court elevated the status of the 10th Amendment, not to the point where it replaced the Supremacy Clause as the cornerstone of the Constitution, but in its rulings that gave greater effect to the reserve powers of the state.

As a consequence, the Court delivered decisions that withdrew various subjects from the orbit of the national government and identified them as within the province of state authority. For example, in 1918, in Hammer v. Dagenhart, the Court prohibited Congress from enacting a law prohibiting the transportation in inter-state commerce of goods produced by child labor, on the theory that the state police power governed local manufacturing.

But the pendulum began to swing back toward the Marshall Court’s view and held that powers reserved to states could not be invoked to curtail federal authority. In 1941, in U.S. v. Darby, the Court declared: “The amendment states but a truism that all is retained which has not been surrendered. There is nothing in its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the Amendment.”

The framers of the 10th Amendment, in other words, had added the provision as an extra precaution to allay concerns that the national government might seek to exercise powers that it had not been granted. As a result, the amendment could not serve as a measuring stick for the exercise of national power. Thus, as Madison said of the provision: “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.”

Although the 10th Amendment has been viewed by the Court as declaratory of the relationship between the federal and state governments, it has been invoked to defend particular state powers. In 1991, in Gregory v. Ashcroft, the Court held that Missouri’s Constitution—providing a mandatory retirement age of 70 for most state judges—did violate the Age Discrimination in Employment Act of 1967 since the authority of states to determine the qualifications of their officials lies at the heart of representative government.

Whatever content the Court may attribute to the 10th Amendment, it will always be read within the sweep of the Supremacy Clause.

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