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Tenth Amendment to the United States Constitution

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Title: Tenth Amendment to the United States Constitution  
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Subject: United States Bill of Rights, List of United States Supreme Court cases, Third Amendment to the United States Constitution, United States Constitution, Massachusetts v. United States Department of Health and Human Services
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Tenth Amendment to the United States Constitution

The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791.[1] It expresses the principle of federalism, which undergirds the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the states or the people. The framers of this amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system.[2]


The Bill of Rights in the National Archives
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.[3]

Drafting and adoption

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."[4] After the Constitution was ratified, South Carolina Representative Thomas Tudor Tucker and Massachusetts Representative Elbridge Gerry separately proposed similar amendments limiting the federal government to powers "expressly" delegated, which would have denied implied powers.[5] James Madison opposed the amendments, stating that "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."[5] The word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.[6]

When he introduced the Tenth Amendment in Congress, James Madison explained that many states were eager to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.[7]

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights.[8][9] The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.

The phrase "..., or to the people." was appended in handwriting by the clerk of the Senate as the Bill of Rights circulated between the two Houses of Congress.[10][11]

Judicial interpretation

The Tenth Amendment, which makes explicit the idea that the federal government is limited to only the powers granted in the Constitution, has been declared to be a truism by the Supreme Court. In United States v. Sprague (1931) the Supreme Court asserted that the amendment "added nothing to the [Constitution] as originally ratified."

States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby Lumber, 312 U.S. 100, 124 (1941), reads as follows:

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.

Forced participation or commandeering

The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O'Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. by attaching conditions to the receipt of federal funds, see South Dakota v. Dole, 483 U.S. 203 (1987), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.

In 1998, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional.

Commerce clause

In modern times, the Commerce Clause has become one of the most frequently-used sources of Congress's power, and thus its interpretation is very important in determining the allowable scope of federal government.

In the 20th century, complex economic challenges arising from the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.

In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm – that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer's growing "his own wheat" can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.

In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court changed the analytic framework to be applied in Tenth Amendment cases. Prior to the Garcia decision, the determination of whether there was state immunity from federal regulation turned on whether the state activity was "traditional" for or "integral" to the state government. The Court noted that this analysis was "unsound in principle and unworkable in practice", and rejected it without providing a replacement. The Court's holding declined to set any formula to provide guidance in future cases. Instead, it simply held "...we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA ... that is destructive of state sovereignty or violative of any constitutional provision." It left to future courts how best to determine when a particular federal regulation may be "destructive of state sovereignty or violative of any constitutional provision."

In United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a "gun-free zone" on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government's power under the Commerce Clause. The opinion did not mention the Tenth Amendment, and the Court's 1985 Garcia opinion remains the controlling authority on that subject.

Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In this case, a California woman sued the Drug Enforcement Administration after her medical marijuana crop was seized and destroyed by federal agents. Medical marijuana was explicitly made legal under California state law by Proposition 215; however, marijuana is prohibited at the federal level by the Controlled Substances Act. Even though the woman grew the marijuana strictly for her own consumption and never sold any, the Supreme Court stated that growing one's own marijuana affects the interstate market of marijuana. The theory was that the marijuana could enter the stream of interstate commerce, even if it clearly wasn't grown for that purpose and that was unlikely ever to happen (the same reasoning as in the Wickard v. Filburn decision). It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.

Federal funding

The federal system limits the ability of the federal government to use state governments as an instrument of the national government, as held in Printz v. United States, 521 U.S. 898 (1997). However, where Congress or the Executive has the power to implement programs, or otherwise regulate, there are, arguably, certain incentives in the national government encouraging States to become the instruments of such national policy, rather than to implement the program directly. One incentive is that state implementation of national programs places implementation in the hands of local officials who are closer to local circumstances. Another incentive is that implementation of federal programs at the state level would in principle limit the growth of the national bureaucracy.

For this reason, Congress often seeks to exercise its powers by offering or encouraging States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device was to condition allocation of federal funding where certain state laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide state 55 mph (90 km/h) speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the states would lose highway funding if they refused to pass such laws (though the national speed limit has since been repealed). See e.g. South Dakota v. Dole, 483 U.S. 203 (1987).

State legislative actions in protest of federal actions

Several states have introduced various resolutions and legislation in protest to federal actions.[12] Despite this, the Supreme Court has explicitly rejected the idea that the states can nullify federal law. In Cooper v. Aaron (1958), the Supreme Court of the United States held that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . ." Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

State sovereignty resolutions (10th Amendment resolutions)

These resolutions attempt to reassert state sovereignty over any area not listed among the "enumerated powers" (i.e., any law based on an "expansive reading" of the Commerce Clause, the Necessary and Proper Clause, or the Supremacy Clause would, according to this resolution, be invalid).

State sovereignty bills (10th Amendment Bills)

A "State Sovereignty Bill" is one step beyond a State Sovereignty Resolution. The bill would mandate action against what the state legislature perceives as unconstitutional federal legislation.

Firearms freedom legislation and federal gun laws nullification

Starting in 2012, in response to a threat of law made through executive orders by President Obama, more than a dozen states around the US began proposing legislation that would "...declare that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states". The legislation would require that the firearm be prominently marked as being "Made in {name of state}" and further prohibit federal regulation solely on the basis that "basic materials" and "generic and insignificant parts" of the firearm may have their origins from outside the state.

  • Through 2010, resolutions have been introduced in the legislatures of 27 states that would nullify federal authority over such local firearms. The legislation passed in Montana and Tennessee in 2009 and in Alaska, Arizona, Idaho, South Dakota, Utah, and Wyoming the following year.[16] South Carolina has taken the issue one step further: in 2010 a bill was introduced which would effectively nullify all gun registration laws within the state.[17]
  • Texas has prefiled[18] and West Virginia has filed[19] similar legislation for the current 2011 legislative session.
  • In 2013, one of the most strongly worded Second Amendment protection acts in the nation was signed into law in Kansas.[20]

Marijuana laws

As of June 2014, 24 states (Alaska, Arizona, California, Colorado, Hawaii, Massachusetts, Maine, Michigan, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have passed legislation which permit the use of medical marijuana.[21] California Proposition 19 would have gone one step further, and legalized marijuana use by persons over age 21 for any purpose whatsoever;[22] however, the state constitutional amendment did not pass.

In 2012, both Washington and Colorado legalized the recreational use of marijuana. Both states previously legalized the use of medical marijuana. The ballot measure allows for anyone over 21 to possess up to an ounce from licensed vendors.[23] Colorado also allows citizens to grow up to 6 plants.[24] The Obama administration announced in October 2009 that it advised federal prosecutors not to target legally-operating medicinal marijuana users, or their suppliers, in states that have passed such laws.[25][26] However, in the same year, the DEA conducted a record number of medical marijuana raids.[27]

The DEA has continued to raid federally prohibited medical facilities in several states,[28][29][30] and the DOJ has gone so far as to prevent such cases from being well publicized.[31]

The IRS has also attempted to prevent the sale of medical marijuana in California by refusing to treat normally-deductible business expenses as such for dispensaries, notably for the Harborside Health Center in Oakland.[32][33]


As of March 2010, 25 states (beginning with Maine in 2007) have passed legislation and/or resolutions which opposed the REAL ID Act. Though the legislation is still on the books, its implementation has been delayed on several occasions and is currently not being enforced.[34]

National health care nullification

As of March 2010, legislators in 30 states had introduced legislation which would declare certain provisions of any proposed national health care bill to be null and void within the state; the legislation passed in Arizona, Idaho, Utah, and Virginia.[35] Such provisions include mandatory participation in such a system as well as preserving the right of a patient to pay a health care professional for treatment (and for the professional to accept it) outside of a single-payer system. Arizona's legislation passed as a proposed constitutional amendment, approved by voters in 2010.[36] On February 1, 2010, the Virginia Senate took a stand against a key provision of a proposed federal health care overhaul, passing legislation declaring that Virginia residents cannot be forced to buy health insurance. On March 17, 2010, Idaho Governor C.L. "Butch" Otter signed a bill requiring the Attorney General to sue the federal government if Idaho residents are required to buy health insurance.[37]

Bring the Guard home

As of March 2010, legislators in seven states had introduced legislation which would permit the governor of the state to recall any National Guard troops from overseas deployments (such as in Iraq and Afghanistan); the bills failed in Maryland and New Mexico.[38]

Legal tender

As of March 2010, legislators in seven states have introduced legislation which would seek to nullify federal legal tender laws in the state by authorizing payment in gold and silver or a paper note backed 100% by gold or silver; the legislation failed in Colorado and Montana.[39]

Cap-and-trade nullification

As of March 2010, legislators in four states have introduced legislation which would nullify any proposed federal emissions regulation under the "cap-and-trade" model; none have advanced beyond the introductory stage.[40]

State sovereignty and federal tax funds acts

As of March 2010, legislators in three states have introduced legislation which would require businesses (and in some cases, individuals) to remit their federal tax payments to the state treasurer (or equivalent body) for deposit into an escrow fund. If the state legislature determined that a portion of the federal budget was not constitutional, or if the federal government imposed penalties or sanctions upon the state for creating the fund, then the money would be withheld. None have advanced beyond the introductory stage.[41]

Sheriffs first legislation

As of March 2010, legislators in three states had introduced legislation which would make it a crime for any federal agent to make an arrest, search or seizure within the state without getting the advance, written permission of the sheriff of the county in which the event would take place. The bills would provide for the following exceptions:

  • Actions on federal property
  • A federal employee witnesses a crime requiring an immediate arrest
  • Actions under either hot pursuit or involving immigration
  • The person to be apprehended is either an elected county or state officer, an employee of the sheriff's office, or has such close connection with the sheriff that the person is likely to be notified by the sheriff of any impending action.[42]

None have advanced beyond the introductory stage.[43]

Federal land legislation

As of February 2010, legislators in Utah have introduced legislation to allow the use of eminent domain on federal land. Rep. Christopher Herrod has introduced the bill in a state where the federal government controls over 60% of the land. The effort has the full support of Republican Attorney General Mark Shurtleff, who would have to defend the law. The proposal includes setting aside $3 million for legal defense.[44][45]

Nullification of federal intrastate commerce regulation

As of March 2010, legislators in four states had introduced legislation which would nullify federal regulation of trade and activities which are solely within the boundaries of a state and which do not cross state lines; that is activities that are by definition NOT COMMERCE, under the Constitution. The Virginia legislation has passed one house.[46]

Sanctuary city

Another form of protest against enforcement of immigration laws, several United States cities have declared themselves sanctuary cities, whereby they have ordered the local police department to specifically not work with United States Customs and Border Protection officials to arrest persons illegally residing within the boundaries of the city, and not to inquire as to a person's immigration status, even if the person was arrested.[47]

Intrastate Coal and Use Act

In protest of the Environmental Protection Agency allegedly overstepping its authority by interfering with intrastate commerce, the West Virginia Intrastate Coal and Use Act (H.B. 2554)[48] was being introduced into the West Virginia House of Delegates by Delegate Gary Howell. The bill states that coal sold and used within the borders of West Virginia is not subject to EPA authority because no interstate commerce exists and the state retains the rights to control its own intrastate commerce under the 10th Amendment.[49][50][51] The American Legislative Exchange Council recommends the Intrastate Coal and Use Act for model legislation in other states.[52]

See also


  1. ^ "The Bill of Rights: A Transcription".  
  2. ^ Cooper, Charles. "Essay on the Tenth Amendment:Reserved Powers of the States". Retrieved September 11, 2014. 
  3. ^  
  4. ^  
  5. ^ a b  
  6. ^ Garrett Epps. "'"Constitutional Myth #7: The 10th Amendment Protects 'States' Rights. Retrieved 2013-06-26. 
  7. ^ The Founders Constitution.
  8. ^ Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991): "The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time...."
  9. ^ Calabresi, Steven and Prakash, Saikrishna. "The President's Power to Execute the Laws", Yale Law Journal, Vol. 104 (1994): "The message of the Tenth Amendment is that expressio unius est exclusio alterius applies to lists of governmental powers."
  10. ^ Henry Lawrence Rollins. "Henry Speaks On His Consciousness-Expanding Trip to the Library of Congress With Ian MacKaye". Retrieved 2011-11-16. 
  11. ^ Official website of The U.S. National Archives and Records Administration, The Center for Legislative Archives, Bill of Rights, Featured Document: Senate Revisions to House-passed Amendments to the Constitution (draft of Bill of Rights), September 9, 1789
  12. ^ Johnston, Kirk. "States’ Rights Is Rallying Cry for Lawmakers" New York Times March 16, 2010
  13. ^ "10th Amendment Resolutions – Tenth Amendment Center". Retrieved 2010-11-03. 
  14. ^ Not all states require gubernatorial assent of resolutions; in some states a resolution is deemed passed if both houses concur as to the language.
  15. ^ "10th Amendment Bills – Tenth Amendment Center". 2009-11-16. Retrieved 2010-11-03. 
  16. ^ "Firearms Freedom Act Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  17. ^ "Raising the bar for Nullification – Tenth Amendment Center". 2010-02-05. Retrieved 2010-11-03. 
  18. ^ "Firearms Freedom Act Introduced in Texas – Tenth Amendment Center Blog". 2010-11-16. Retrieved 2011-01-28. 
  19. ^ "House Bill 2705 Text". 2011-01-21. Retrieved 2011-01-28. 
  20. ^ Kansas Governor Signs Second Amendment Protection Act. Tenth Amendment Center (2013-04-17). Retrieved on 2013-07-12.
  21. ^ "State Marijuana Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  22. ^ "Nullification: Ballot Drive for Legal Pot in CA – Tenth Amendment Center Blog". 2009-09-23. Retrieved 2010-11-03. 
  23. ^ Voorhees, Josh. (2012-11-07) Marijuana legal: Colorado and Washington legalize pot, but federal laws complicate ballot measures. Retrieved on 2013-07-12.
  24. ^ Amendment 64 Passes: Colorado Legalizes Marijuana For Recreational Use. (2012-11-20). Retrieved on 2013-07-12.
  25. ^ David W. Ogden (19 October 2009). "Memorandum for Selected United States Attorneys - Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana" (PDF).  
  26. ^ "Obama Won't Seek to Arrest Medical Pot Users". Fox News. October 19, 2009. 
  27. ^ "Blowing Smoke: Obama Promises One Thing, Does Another on Medical Marijuana". April 6, 2011. Retrieved 15 July 2013. 
  28. ^ "Feds Raid Medical Marijuana Dispensaries In Michigan". Toke of the Town. April 12, 2011. 
  29. ^ "Montana Medical Marijuana Federal Raid Protests". Montana Norml. March 15, 2011. 
  30. ^ "Weho Medical Marijuana Collectives Closed After DEA Raid". West Hollywood Patch. March 16, 2011. 
  31. ^ "Speak no evil: DEA, DOJ stay mum on medical marijuana raids". The Daily Caller. February 10, 2011. 
  32. ^ Erb, Kelly Phillips (6 October 2011). "IRS Just Says No to Medical Marijuana Deductions". Forbes. Retrieved 12 March 2012. 
  33. ^ Olson, Al (5 October 2011). "IRS ruling strikes fear in medical marijuana industry". MSNBC. Retrieved 12 March 2012. 
  34. ^ "Real ID Nullification Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  35. ^ "Health Care Freedom Act – Tenth Amendment Center". Retrieved 2010-11-03. 
  36. ^ "Arizona HCR2014: National Health Care Nullification – Tenth Amendment Center". 2009-06-26. Retrieved 2010-11-03. 
  37. ^ Miller, John, AP (March 18, 2010). Idaho First to Sign Law against Health Care Reform. ABC News.
  38. ^ "Bring the Guard Home Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  39. ^ "Constitutional Tender Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  40. ^ "Cap and Trade Nullification Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  41. ^ "State Sovereignty and Federal Tax Funds Act – Tenth Amendment Center". Retrieved 2010-11-03. 
  42. ^ "Sheriffs First". Sheriffs First. Retrieved 2011-01-28. 
  43. ^ "Sheriffs First Legislation – Tenth Amendment Center". Retrieved 2010-11-03. 
  44. ^ Vergaris, Brock, AP (February 11, 2010). Utah Lawmakers Want Federal Land Returned to State. ABC News.
  45. ^ Carltom, Jim (March 30, 2010). Federal Land Seizures Urged by Utah Governor. Wall Street Journal.
  46. ^ "Nullification of Federal Intrastate Commerce Regulation – Tenth Amendment Center". Retrieved 2010-11-03. 
  47. ^ Fimrite, Peter (2011-01-07). "Newsom says S.F. won't help with raids". (San Francisco Chronicle). Retrieved 8 March 2011. 
  48. ^ "House Bill 2554 Text". 2011-01-19. Retrieved 2011-01-28. 
  49. ^ "Can a State Bypass the EPA? - Jillian Bandes - Townhall Conservative". Retrieved 2011-01-28. 
  50. ^ Emily Newman (2010-12-29). "Delegate proposes coal permit act » Local News » Cumberland Times-News". Retrieved 2011-01-28. 
  51. ^ "1/18/11: House discusses coal permitting and school funding". YouTube. 1982-05-20. Retrieved 2011-01-28. 
  52. ^ [1]

External links

  • CRS Annotated Constitution: Tenth Amendment Cornell's Annotated Constitution.
  • Tenth Amendment Center The Tenth Amendment Center works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of states’ rights issues, focusing primarily on the decentralization of federal government power.
  • Exploring Constitutional Conflicts by Doug Lindner: This site explores some of the issues and controversies that surround the U.S. Constitution.
  • Missouri Sovereignty Project "Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri.
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