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.
Amendment X
The Tenth Amendment expresses the principle that underpins the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth 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.
Because the Constitution created a government of limited and enumerated powers, the Federalist Framers initially believed that a bill of rights was not only unnecessary, but also potentially dangerous. The Federalists insisted that, under the normal rules of statutory construction, by forbidding the government from acting in certain areas, a bill of rights necessarily implied that the government could act in all other areas not forbidden to it. That would change the federal government from one of limited powers to one, like the states, of general legislative powers.
The Federalists relented and passed the Bill of Rights in the First Congress only after making certain that no such implication could arise from the prohibitions of the Bill of Rights. Hence, the Tenth Amendment—a rule of construction that warns against interpreting the other amendments in the Bill of Rights to imply powers in the national government that were not granted by the original document.
Despite the Framers’ concerns and the clear text of the Tenth Amendment, the Supreme Court indulged precisely this form of reasoning. In the Legal Tender Cases in 1871, declining to locate the power to issue paper money in any enumerated power, the Court wrote:“And, that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments….They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.”
While providing a rule of construction for the relationship between the Bill of Rights and the scheme of enumerated powers, the Tenth Amendment also affirms the Constitution’s basic scheme of defining the relationship between the national and state governments. The Founders were wary of centralized government. At the same time, the failure of the Articles of Confederation revealed the necessity of vesting some authority independent of the states in a national government. The Constitution therefore created a novel system of mixed sovereignty. Each government possessed direct authority over citizens: the states generally over their citizens, and the federal government under its assigned powers.
An historical accident was our undoing here. that historical accident was the intersection of the slavery issue and the right to secede issue.
In 1860, the Southern States were wrong (morally) about slavery, but they were right that they had a Constitutional right to secede from the Union. Conversely, the North was correct about slavery, but wrong in denying secession rights.
Once states lost the right to secede through the War Between the States, they lost all leverage against the Federal government and the Constitutional balance attempted by the Ninth and Tenth Amendments was irretrievably upset.
One wonders what would have happened if the North would have let the South secede and then joined Europe in an economic boycott against the newly-independent Southern states. Sure, slavery would have lasted a bit longer, but I don’t think it would have lasted much longer. On the other hand, states would have retained the right to enforce the Tenth Amendment by (threat of) secession. It is also interesting to ponder whether present day North American blacks and whites would have be better off if slavery had died a more gradual, natural death in the South.
At the time of the Constitution’s Ratification, that once ratified, a state’s decision would be permanent, and any attempt to leave the Union would be met with armed invasion, then I don’t think there’s any question that the Constitution would never have been ratified. It barely was ratified anyway.
As things now stand the tenth amendment is certainly the most ignored. Congress runs a 50-state extortion ring, threatening to withhold education or highway money if the states do not comply… this seems to me to be a blatant violation of the 10th Amendment. This is how they keep web filters in our libraries… no child left behind… The Patriot Act… FISA Courts, etc.”
Wouldn’t the 10th prevent the Federal Government from being involved in these other things. States rights mean that these other programs should be funded and run by the state. There is no reason that the federal government should be giving the states any money at all according to my reading of the 10th. If states funded it themselves then they could easily blow off the Fed and do things the way they want them done without having to worry about federal funding drying up.
In the end it comes down to a line from the movie “All The President’s Men”: “Follow the money”.
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