There is much talk here on these pages and on other conservative sites that the Tenth Amendment is some broad grant of state’s rights. Many argue that because of the 10th Amendment, the federal government cannot wade into areas that traditionally have been the province of state governments. However, to assert that argument is to read way too much into the Amendment as stated. In short, these people are arguing for the very judicial activism they decry in other instances. To understand this, one needs to look to the history of the Bill of Rights in general and the Tenth Amendment in particular. To do so reveals that there is not this monolithic state’s rights argument that many now put forward. In fact, there is nothing new about the argument and that is part of the very design of the Constitution itself, especially the Article I, Section 8 enumerated powers aspect and one very, very important enumerated power the Tenth Amendmenters fail to mention.

After the Constitution was presented to the states for ratification, many were reluctant unless a Bill of Rights was attached. The drafters of the document argued against a Bill of Rights because they believed that such a thing would erroneously infer that the federal government had the right to, for example, limit speech or assembly, or establish a church, etc. Article I, Section 8 specifies the powers of a national Congress. It establishes a government of enumerated powers. By implication, it establishes a country where people have enumerated rights rooted in natural law. Furthermore, they argued that since every state had a constitution and those constitutions had clauses similar to the Bill of Rights, that was sufficient protection against these perceived fears of the Anti-Federalists. The argument was that since the Constitution itself gave no enumerated power to the federal government to regulate speech, assembly, religion, the right to bear arms, etc., they could not do so. Yet, they could raise an army, maintain a navy, regulate interstate and international commerce, establish post offices, etc. As such, they viewed a Bill of Rights as being superfluous within the constitutional framework. Still, to abate these unwarranted fears (in their estimation) they gave into the Anti-Federalists and agreed that the first Congress would take up a Bill of Rights. In fact, the first eight amendments are essentially lifted from state constitutions in existence at the time.

Almost as afterthoughts, the Ninth and Tenth Amendments were added. In effect, the Tenth Amendment asserts what we merely already know from the actual Constitution: the federal government is one of enumerated powers and as far as the Constitution is concerned, anything not enumerated is left to the states. It is, in Supreme Court parlance, merely a “truism.” The Tenth Amendment does nothing to limit federal power, nor does it do anything to expand the powers of states.

That is because the powers of the federal government enumerated in Article I, Section 8 are intentionally vague. With respect to the Commerce Clause, there are several vague terms- “to regulate, “commerce,” and “among the several states” are inherently open to a wide range of interpretation especially as society and technology changes. If there is any doubt that they are vague phrases, look at over 200 years of litigation regarding them then come back and talk to me. Clearly, people like Madison and Hamilton knew how to write more defined and specific statements, but they declined to do so. Why did they write the enumerated powers so vaguely? Because Article I, Section 8 powers are pliable principles over time, not a rigid code.

The one enumerated right which most conservatives overlook comes at the end of Article I Section 8- the Necessary and Proper Clause. This final enumerated right stands like a huge exclamation mark catch all. Again, it is a vaguely written clause that potentially gives Congress broad authority. The Tenth Amendment only validates these Congressional authorities; it does not, as conservatives argue, limit them. If Congress has the authority, then the Tenth Amendment is irrelevant in the traditional sense of that word. However, if Congress lacks authority, the amendment merely asserts that that power is reserved to the states, or the people. No matter how you cut it, the Tenth Amendment itself says absolutely nothing about the scope of power of either the federal or state governments. It is a reminder of how power is shared in our constitutional system. If the federal government lacks it, then it is reserved to the states.

When the original draft of the Amendment was considered, a more explicit version said that powers which would be reserved to the states were “all powers not expressly delegated to the United States.” The word “expressly” would have clearly cabined federal power and would make explicit that the congressional authority be expressly delegated. Several states actually proposed that language and the original draft had the word “expressly,” but James Madison objected saying that their must be powers by “implication” and if one were to reduce the federal government to defined powers, it would render the entire Constitutional unworkable.

Some have argued that the phrase “or the people” is further evidence of state’s rights. That was suggested by Daniel Carroll and merely underscores the fact that any government- state or federal- ultimately derives its legitimacy from the people. It is not and was never intended as a phrase to confine federal power. And the Tenth Amendment has an analogous clause in the Articles of Confederation. Unlike the Constitution, the Articles specifically and expressly protected state’s rights. Those who wrote the Constitution realized that the Articles of Confederation were unworkable which is why they wrote the Constitution in the first place. Knowing this and following through to the Bill of Rights, why would they then negate what they just achieved if the traditional belief and invocation of the Tenth Amendment by conservatives is the correct view? The answer is they wouldn’t, which then means that when conservatives invoke the Tenth Amendment and state’s rights, they do so from a position of historical and textual misunderstanding, or ignorance.

This view of the Tenth Amendment is not one of Liberal thought; it is historical fact. Conservatives taking up the Tenth Amendment as a panacea to check the power of the federal government are just plain wrong. In only a few instances has any Court held the Tenth Amendment in the high regard that most conservatives do today. To be sure, there are checks on federal power against the states under the Tenth Amendment. For example, it prohibits the federal government from taking over the states or their officials and using them as instruments of federal regulatory schemes. The other is that it protects against federal laws that reach too far into traditional state functions, like family law. However, even here, the federal government is not completely constrained and these prohibitions can be by-passed by conditioning federal largesse to achieve those ends of the federal government they feel necessary.

Which then brings us to the true conservative solution instead of a faulty reliance on the Tenth Amendment. The Founders granted the federal government considerable power based upon the failed experiment that was the Articles of Confederation. Yet at the same time, they most likely never envisioned that federal government intruding into areas that we see today. They could not have foreseen an Industrial Revolution, union organizing, worker exploitation, a national energy policy, farm subsidies and the like- things we today take for granted. The beauty of the Constitution is that they created a document that was malleable enough to account for more recent events. One can argue that the original meaning of the Commerce Clause, for example, is rather straightforward and should follow through from the 18th Century understanding. In that case, if commerce is strictly intrastate, then the federal government has no right “regulating” it. But, what commerce today is truly intrastate? The real solution is not invoking the Tenth Amendment when the opportunity presents itself, but being totally committed to small and limited government and electing people who share that commitment. Put another way, simply because the federal government has the authority is not necessarily a justification to exercise that authority. However, if conservatives fail in that task, the Tenth Amendment is no constitutional backstop against electoral failures. That view has absolutely no basis in the history, the text, the interpretation, or the jurisprudence regarding the Tenth Amendment. Those who stand on the Tenth Amendment to advance a conservative agenda are clearly mistaken and are merely confusing the debate with unsubstantiated rhetoric.