Monday, August 24, 2009

Of Government and Men: The Tenth Amendment

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."

-- Tenth Amendment to the U. S. Constitution

In plain English this means: If it doesn't say it in here, the government can't do it. The Tenth Amendment was one of the first ten amendments to the U.S. Constitution. It, along with the first nine amendments, are labeled the Bill of Rights. I bring this up to illustrate how important our founders thought this amendment was. If you look through any discussion on the debates surrounding the Constitution, there were those who thought this should have been more strongly worded, and those who thought it should carry less weight. However, we in today's world have to operate within the boundaries of what was written and ratified.

Justice Joseph Story (who I mentioned in my last post in this series), in his A familiar Exposition of The Constitution of the United States, states that, "The Government of the United States is one of limited powers; and no authority exists beyond the prescribed limits, marked out in the instrument itself. Whatever powers are not granted, necessarily belong to the respective States, or to the people of the respective States, if they have not been confided by them to the States Governments."{emphasis in the original}. This is perhaps the best summary of the tenth amendment I have come across.

According to Wikipedia, there are 37 states that have introduced sovereignty resolutions in the state legislatures reaffirming their sovereignty under the tenth amendment. The Tenth Amendment Center has a map with each resolution shown on it along with the current status.

It is important to note that there are specific powers that the U.S. Constitution grants the Federal government. For example, the Constitution gives the United States government the power to collect taxes (as much as we may not like that). However, the Constitution is silent on exactly how the Congress is to do that. Likewise, while the Constitution sets up a Supreme Court, it does not specify how many people are to be Justices on that court. These "secondary powers" for lack of a better word, are not reserved for the states because the government must use these powers to comply with the spelled out powers. The government is given specific tasks within the Constitution and must execute those.

There are other areas the government steps out of bounds of the Constitution (written or implied). When you have some free time, Google the "Interstate Commerce Clause". There are a number of powers the government has found out of this small phrase that could (and perhaps should) be challenged. In many cases, the States have given up their powers in order to receive Federal tax money. There is a way to fix this, but it will be a little painful. States must stop looking to the Federal Government to solve their problems. However, this requires the States to own the problem and the solution; something most politicians are afraid to do.

Make no mistake, there are specific duties and powers the Federal government has and should have. However, the federal government has meddled with things the Founders never thought about. The States have the power to reign in this power and to tell the government to buzz off. This requires an elected official to look past how to win reelction. Perhaps one day, we will see more Statesmen in power and less politicians.


BunGirl said...

Great commentary -- I'm really enjoying this series!

Rebecca said...

This amendment has always been one that is really confusing to me. Thanks for the explanation! It helped me understand this amendment a little better.

In practice, it's a lot different and seems like it has been interpreted to mean, "if it's NOT in the constitution than the government should take responsibility for it."

Andy D said...

Thanks BunGirl. I don't receive many comments on this series, so I am glad to know you and others enjoy it.

Rebecca, I am sad to say that you are right. To many voters, and to many local officials seem content to allow the federal government to take over their duties.

Patrick said...


I want to pose a question on this topic. Since we all are concerned about the size of government today and its reaches, think about this.

Over the years, have state governments been too complacent with receiving enough federal support for pet projects, special interests, etc. to let the federal goverment do all the heavy legislative lifting? Or has the federal government simply taken the liberty to extend itself despite pushback?

I think the answer could be really important when we are talking about how our government is operating.

Patrick said...

I had another comment. Senators and House Representatives are part of the Federal Goverment, but they are supposed to represent the people of each State. So, the people can make their Federal representatives delegate those powers which are not included in the Constitution, right?

I'm just trying to think about this amendment in everyway possible.

Andy D said...

Patrick, all very good questions. I think the answer to your first two questions are Yes. A great example of this is during the Great Depression. The Federal Government decided it was the only entity big enough to handle the Depression. It started creating agencies and regulating bodies that it didn't have the authority to do. The States allowed this because they liked the influx of federal tax money. It was only when some individuals took the issue to the Supreme Court that those programs got struck down. I can recommend a great book if you are more interested in that story. The same thing has been happening since then. The Feds have the best of intentions, but they are overstepping their boundaries. The States like the tax money, and don't see any harm in allowing the feds to tell them what to do. Now, with the Stimulus and the Health Care debate, some states are rethinking that mentality.

I think I understand your question. You are asking if the Federal Representatives (as elected representatives of the voters of each state) have the power to take on those powers delegated to the state by the U.S. Constitution. If that is your question (and please correct me if I misunderstood you) the answer is no. The people and their representatives can not at a whim delegate those powers away. If the people want the federal government to have those powers, they must Amend the constitution. Otherwise, States that don't agree with that, or even future generations that don't want to be saddled with such a large government, are forced to live by the laziness of the other states.

Patrick said...


Thanks for the response. You were correct about the second question. That was the topic I for which I wanted to some clarity.

Kevin said...

I know this discussion is probably over, considering the last comment was on the 26th, but I had a thought today that has helped me understand the 10th Amendment a little more.

We all learned in government class the checks and balances system in the federal government. However, I think the checks and balances system is not just for the branches of the federal government. The state governments need to keep the federal government checked and balanced, the people need to keep all levels (local, state and federal) of government checked and balanced. I think that is what the 10th amendment is all about. Guaranteeing people and the states the rights to keep the federal government checked and balanced. The amendment says "the powers not delegated to the United States by the Constitution" shows that the federal government does have some powers over the states and people, thus rounding out the balancing system.