The Tenth Amendment

In 1791, the states ratified the Tenth Amendment as part of the Bill of Rights. Unlike several other early amendments, it is brief—only one sentence. However, that one sentence grants state governments all powers not specifically delegated to the federal government by the Constitution.

The Constitution established a federal government with defined powers. While the federal government possesses significant authority, the Constitution explicitly confines that authority to the powers it lists.

The Tenth Amendment to the U.S. Constitution concerns the power dynamic between the federal and state governments. It specifies that every power not granted to the federal government is delegated to state governments. In other words, if the Constitution grants a specific power to the federal government, it is its power alone. Every unenumerated power is a power reserved to the states.

The article summarizes the Tenth Amendment, starting with its text and significance. It proceeds to explore the historical context of the Amendment and the Bill of Rights. The article wraps up with an analysis of how the Supreme Court has interpreted the Amendment, particularly in relation to the commerce clause.

The Tenth Amendment's Text and Meaning

The Tenth Amendment states:

"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."

Essentially, it reserves to the states (or the people) any powers the Constitution does not grant to the federal government, except for powers the Constitution specifically withholds from the states. It balances the vast powers of the federal government against state sovereignty.

The Ninth and Tenth Amendments are unique because they do not explicitly grant constitutional rights. Constitutional scholars note that the Ninth and Tenth Amendments are companion provisions. They act as rules for interpreting the Constitution:

• The Ninth Amendment states that just because the Bill of Rights lists some rights, it is not an exhaustive list. In other words, people may possess other fundamental rights beyond those listed in the Bill of Rights.

• The Tenth Amendment's language implies that the powers the Constitution grants to the federal government are exhaustive. The Amendment also reserves all unenumerated powers to the states.

The Ninth and Tenth Amendments clarify that the Bill of Rights does not enumerate all possible rights of the people. However, it does enumerate all the of the federal government's powers.

For example, the Constitution enumerates Congress's powers in Article I, Section 8. It also enumerates the specific powers of the executive and judicial branches in Articles II and III, respectively. Those branches have no other powers than the ones enumerated in the respective Articles.

The Tenth Amendment reinforces the idea that every other power is reserved to the states. In United States v. Darby (1941), the Supreme Court wrote that the Tenth Amendment is "but a truism that all is retained which has not been surrendered."

What Are "Reserved Powers?"

Reserved powers refer to powers the Constitution does not specifically grant to the federal government. The Tenth Amendment gives these powers to the states. 

Visit the links below for discussion of each branch’s enumerated powers:

• Legislative branch (Article I, Section 8)

• Executive branch (Article II, Section 2)

• Judicial branch (Article III, Section 2)

If the Constitution does not list a specific power in the above sections, it is reserved for the states.

What Are Some Examples of Reserved Powers?

States use their police powers to "regulate public welfare and morality." Examples of powers reserved to the states include the following:

• Running elections

• Creating marriage laws and issuing marriage certificates

• Establishing and running schools and hospitals

• Issuing professional licenses (e.g., medical or law licenses)

• Implementing welfare programs

Read the Supreme Court Interpretation of the Tenth Amendment section below for more information about state police powers.

Why are Reserved Powers Important?

Reserving powers for state governments helps maintain a balance of power between them and the federal government. It also allows states the freedom to try out different ideas and programs. States are sometimes called "laboratories of democracy" for this reason.

The Tenth Amendment safeguards the principles of federalism. Federalism refers to the division of power between the federal and state governments. It generally protects states' rights by limiting the federal government's ability to regulate or command state governments to adopt policies or enforce federal laws.

Historical Background

When the states ratified the Constitution in 1788, it did not include the Bill of Rights. This was a contentious decision—the Framers fiercely debated whether including one was necessary.

One faction argued that a Bill of Rights was unnecessary because the government only had the limited powers listed in the Constitution. The other faction feared the federal government would be too powerful without specifically enumerating citizens' rights.

Ultimately, the Framers proposed the Constitution to the states for ratification without a Bill of Rights. However, several states did not want to ratify it without adding a Bill of Rights. To achieve ratification, James Madison and others promised that Congress would propose amendments after ratification.

The proposed Bill of Rights consisted of 12 amendments. The states ratified 10 of the 12 proposed amendments in 1791, and the Bill of Rights became known as the Bill of Rights. The first eight amendments to the Constitution protected individual rights, and the Ninth and Tenth Amendments clarified the interpretation of rights and powers.

The Framers intended the Tenth Amendment to confirm that the federal government was a limited government of enumerated powers. Any powers the Constitution does not delegate to the federal government are reserved for state and local governments.

McCulloch v. Maryland

The Second Bank of the United States was chartered by the federal government in 1816, yet the nation's financial issues persisted following its establishment.

Maryland passed a law in 1818 allowing it to tax the bank. The state eventually sued James McCulloch, a bank officer, for failing to pay the tax. Maryland won the case at the state court level, and the bank appealed to the Supreme Court.

The case's two issues were as follows:

• Did the federal government have the power to charter a national bank?

• Did states have the power to levy taxes against a national bank?

Chief Justice John Marshall authored the Court's landmark decision regarding federalism. The Court held that the federal government has the power to charter a national bank, even though Article I, Section 8 of the Constitution does not specifically list that as one of its enumerated powers. Chief Justice Marshall wrote that the last sentence of Article I, Section 8, gives Congress the power "to make all Laws which shall be necessary and proper" to carry out its delegated powers. The bank provided a means to carry out Congress's powers. Therefore, Congress had the power to charter the bank.

The Court also held that states only have the power to tax their people and property. Allowing a state to tax federal institutions would frustrate the federal government.

McCulloch had two significant effects:

• It expanded Congress's lawmaking powers through the necessary and proper clause.

• It ruled that states cannot tax or otherwise "control the operations of the constitutional laws enacted by Congress."

McCulloch's expansion of congressional power grew to overshadow the Tenth Amendment. It opened the door for Congress to act beyond the powers delegated to it. It also limited state powers by holding that states could not tax federal institutions.

The Civil War and Reconstruction

The Constitution and Bill of Rights originally only applied to the federal government. In other words, the First Amendment only protected your right to free speech against federal government violations, not state governments.

After the Civil War, the states ratified the Reconstruction Amendments:

• The Thirteenth Amendment

• The Fourteenth Amendment

• The Fifteenth Amendment

Soon after, the Supreme Court held that the Fourteenth Amendment applies Constitutional rights and protections against state governments. In a practical sense, it provided federal protection to state citizens from constitutional violations committed by state and local governments.

Supreme Court Interpretation of the Tenth Amendment

Supreme Court jurisprudence regarding the Tenth Amendment was generally consistent in the first 200 years following its ratification. The National Constitution Center notes:

"The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two centuries."

But, in the 1970s, the Supreme Court began "to give substantive constitutional content to the Tenth Amendment."

The following cases demonstrate an evolving interpretation of the Tenth Amendment, federalism, and Congress's commerce powers.

The New Deal Revolution

In the 1930s, President Franklin D. Roosevelt introduced the New Deal. It introduced programs to help the United States recover from the Great Depression. It also aimed to prevent future economic disasters. It generally embraced a "government-regulated economy" that attempted to balance competing economic interests.

The New Deal included many programs and reforms, many of which faced legal challenges. The Supreme Court issued several landmark cases involving Congress's powers under the commerce clause. Specifically, several cases involved the relationship between Congress's powers to regulate interstate commerce and states' police powers. These cases include the following, among others:

• Hammer v. Dagenhart

• NLRB v. Jones & Laughlin Steel

• United States v. Darby

We discuss each of these cases in more detail below.

Hammer v. Dagenhart (1918)

In Hammer, the Court struck down a federal law that banned shipping goods across state lines if the goods were produced by child labor. A cotton mill operator whose sons worked at the mill challenged the law.

The Court determined that Congress's commerce powers did not allow it to regulate goods produced via child labor once those goods were involved in interstate commerce.

The determining factor for the Court was that it could separate the "goods" from the "manufacture of goods." In other words, because the goods did not harm interstate commerce, Congress could not exclude them just because child labor produced them.

More broadly, the decision limited Congress's ability to regulate production within state borders.

National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937)

The Court's decision in Jones & Laughlin Steel Corp. was a significant turning point in commerce clause jurisprudence. The case involved whether Congress could regulate labor disputes via the National Labor Relations Act (NLRA) of 1935.

The National Labor Relations Board (NLRB) alleged that a steel manufacturer had discriminated against union members. The Court held that companies cannot discriminate against union members. It also upheld the NLRA. Specifically, the Court held that Congress can regulate activities that have any "significant effect" on interstate commerce.

The decision greatly expanded Congress's powers under the commerce clause to regulate activities within states.

United States v. Darby (1941)

In Darby (1941), the Court overruled Hammer. It also expanded Congress's commerce powers from Jones & Laughlin Steel.

The case involved the constitutionality of the Fair Labor Standards Act (FLSA). The FLSA prevented certain products from entering interstate commerce if they were produced under employment conditions that violated the FLSA.

The defendant, Darby, was a logging company accused of underpaying its employees. It argued that the FLSA's prohibitions were a pretext for allowing the federal government to regulate private employees' wages and hours and that the FLSA's regulations contradicted the states' abilities to regulate wages and hours.

The Court acknowledged that manufacturing products do not constitute interstate commerce. However, it ruled that their shipment affected interstate commerce.

It also noted that the FLSA aimed to regulate substandard working conditions. Substandard working conditions could harm interstate commerce and the states. It held that Congress's powers allowed it to regulate activities "which so affect interstate commerce . . . as to make regulation of them appropriate means to the attainment of a legitimate end[.]"

It also held that the Tenth Amendment did not affect its conclusion. It concluded that the Amendment does not deprive the federal 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."

The holding established a broad understanding of the federal authority to regulate commercial activities within states.

Garcia v. San Antonio Metropolitan Transit Authority (1985)

As the Constitution Annotated notes, the Court adopted a "narrow conception of states' reserved powers under the Tenth Amendment" in Garcia.

The case involved the San Antonio Metropolitan Transit Authority (SAMTA). It provided public transportation in San Antonio, Texas. A SAMTA employee sued SAMTA, alleging it owed him unpaid overtime wages. SAMTA claimed the FLSA's minimum wage and overtime rules did not apply to it based on a previous case involving federalism (National League of Cities v. Usery (1976)).

The Court held that the FLSA applied to SAMTA due to Congress's commerce powers. It also overruled Usery.

The case confirms that cities must comply with federal labor laws. Additionally, state participation in the federal political process protects state sovereignty rather than principles of federalism.

New York v. United States (1992)

New York v. United States involved a federal statute called the Low-Level Radioactive Waste Policy Amendments Act. Congress passed the Act to incentivize the proper storage of radioactive waste. The Act provided the following three incentives to states:

• States could receive surcharges from other states that sent radioactive waste to them. The federal government would collect the surcharges and distribute money to participating states.

• Participating states could reprimand other states for failing to meet certain deadlines. States could ultimately cut off other states' access to waste disposal in the state.

• The Act forced non-complying states to "take title" to waste created within their borders. This would require the non-complying state to assume liability for the waste.

New York State willingly engaged in the program, initiating the storage of radioactive waste in Allegany and Cortland counties. The residents of these counties raised objections to the state's actions, which ultimately led New York to question the constitutionality of the Act.

The Supreme Court held that the first two incentives were constitutional. However, it ruled that the "take title" incentive violated the Tenth Amendment. Specifically, the Court held that the incentive was "impermissibly coercive." It also threatened state sovereignty.

Writing for the majority, Justice Sandra Day O'Connor characterized the "take title" incentive as an attempt to "commandeer" state governments and compel them to participate in the program. She wrote that the incentive crossed the line from an "incentive" into "coercion."

The Court noted that Congress cannot force states to legislate around their existing schemes or take title to radioactive waste. Because the Act required the states to choose between the two options, it infringed on state sovereignty. The Court severed the third incentive from the Act and allowed the rest of the Act to remain good law.

New York clarifies that the federal government cannot force a state to enact or enforce a federal law or regulation. This is also known as the "anti-commandeering" principle. The case also retreated from the Court's narrow conception of state power in Garcia.

Printz v. United States (1997)

Congress enacted the Brady Act in 1993. It established a background check system for purchasing firearms. The Attorney General put several interim provisions in place until the background system became operative. The interim provisions required firearms dealers to obtain information from the potential buyer. Then, they had to transfer that information to the "chief law enforcement officer" (CLEO). The CLEO then had to determine whether the buyer could possess a firearm.

Two CLEOs challenged the Brady Act's constitutionality. In Printz v. United States (1997), the issue was whether a federal law could compel state law enforcement officers to administer a federal statute. Specifically, the CLEOs argued that "congressional action compelling state officers to execute federal laws" was unconstitutional.

The Supreme Court held that the Brady Act violated the Tenth Amendment. A federal law that purports to force state or local executive officials to implement a federal regulatory program is unconstitutional.

The Court noted over 200 years of history and precedent indicating that Congress did not have the power to "commandeer" state officials to executive federal statutes. It also rejected the argument that Congress could do so via its commerce power. Specifically, the Court held that the law was not "necessary and proper" to execute the Commerce Clause.

Printz was an important decision regarding states' rights. However, its practical effect was nominal. Soon after the decision, the Attorney General instituted the permanent background check system.

Modern Interpretation and Ongoing Relevance

Today, the Tenth Amendment still advocates federalism (the division of power between the federal and state governments). It is most commonly invoked in situations like those in Printz and New York, where the federal government commands a state to administer a federal law.

With the Court's decision in Dobbs v. Jackson (2022), some legal scholars anticipate the Tenth Amendment's use in debate and legislation about state regulations regarding abortions. For more information, see the Brennan Center's Fair Weather Federalism: Strategic Uses of the 10th Amendment.