The Tenth Amendment: Reserving Power for the States

Passed by Congress in 1789 and ratified in 1791, the Tenth Amendment is the last in the group of Constitutional Amendments known as the Bill of Rights. Unlike several of the other early amendments, it is quite brief – only one sentence. But that one sentence grants state governments all powers not specifically delegated to the federal government by the Constitution. However, as broad a grant as this seems, interpretation by the Supreme Court has placed some limits on state power.

What It Says

"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."

Frequently Asked Questions

Historical Background

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

“The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.1 The 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 of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than 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.2

That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the states was firmly settled by the refusal of both Houses of Congress to insert the word expressly before the word delegated,3 and was confirmed by Madison’s remarks in the course of the debate, which took place while the proposed amendment was pending, concerning Hamilton’s plan to establish a national bank. 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.4

Early Supreme Court Interpretation of the 10th Amendment

In McCulloch v. Maryland,5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause6 to counter the argument.

The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states’ rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that amendment to the states.7 Stressing the fact that the amendment, unlike the cognate section of the Articles of Confederation, omitted the word expressly as a qualification of granted powers, Marshall declared that its effect was to leave 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 upon a fair construction of the whole instrument.8

More on the Tenth Amendment:

McCulloch v. Maryland Case Summary

Taxing and Police Powers

Supreme Court Interpretation After the New Deal

Footnotes:

1.    United States v. Sprague, 282 U.S. 716, 733 (1931).

2.    United States v. Darby, 312 U.S. 100, 124 (1941). While the Tenth Amendment has been characterized as a ‘truism,’ stating merely that ‘all is retained which has not been surrendered,’ [citing Darby], it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system. Fry v. United States, 421 U.S. 542, 547 n.7 (1975). This policy was effectuated, at least for a time, in National League of Cities v. Usery, 426 U.S. 833 (1976).

3.    Annals of Cong. 767–68 (1789) (defeated in House 17 to 32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150–51 (1971) (defeated in Senate by unrecorded vote).

4.    2 Annals of Cong. 1897 (1791).

5.    17 U.S. (4 Wheat.) 316 (1819).

6.    See discussion under Coefficient or Elastic Clause, supra.

7.    McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819) (argument of counsel).

8.    17 U.S. at 406. From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. United States v. Darby, 312 U.S. 100, 124 (1941).

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