June 1, 2011 – Amendment X of the United States Constitution – Guest Essayist: Andrew Langer, President of the Institute for Liberty
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.
The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st. In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.
The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states. When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government. As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
What was envisioned was a system of “dual sovereigns,” separate, but (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people. In other words, power flows from the people to the government, and as the High Court said 70 years ago: “The amendment states but a truism that all is retained which has not been surrendered.”
Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades. It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted. They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation. In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:
[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?
Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government. There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own. Moreover, it removes policy prioritization an additional level away from an impacted population.
Again, as the High Court said in New York v. United States:
States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.
Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court. In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”. The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own. The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.
In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true. But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated. When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment: government does not have rights. People have rights. Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights. All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.
Tags: Andrew Langer, Article I Section 08, Constitutional Amendment I, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment XIV, Constitutional Amendment XvIX, Federalist No. 84