The Tenth Amendment: States’ Rights

The other nine amendments in the Bill of Rights all refer, in some way, to the rights of individuals. But the Tenth Amendment protects powers, not rights-and of the states, not individuals. Although the states had to give up many powers in order to create the new Constitution, they insisted an amendment be added that affirmed their ongoing role in the governmental design. In fact, the Tenth Amendment was the only part of the Bill of Rights that was recommended by all the state conventions that submitted proposed amendments. From the beginning of the nation, the proper balance between the powers of the federal government and the powers of the states caused major dissension, culminating in the Civil War.

And in the words of Chief Justice John Marshall, this issue “will probably continue to arise, as long as our system shall exist.”

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States”

The Articles of Confederation had limited the national government to the powers expressly listed-and some members of Congress wanted James Madison’s version of the Tenth Amendment to say so as well. But Madison resisted, arguing that implied powers were necessary to the proper functioning of the national government. This debate over federalism, the system of shared power between national and state governments, continued throughout American history. Some argued in favor of states’ rights, saying that the states had sovereign powers equal to the federal government.

Others defended nationalism, the supremacy of the federal government over the states.

Chief Justice John Marshall led the Supreme Court to issue many rulings during the early 1800s that supported national supremacy. In McCulloch v. Maryland (1819), the Court construed the Tenth Amendment narrowly, and the implied powers of the national government broadly.

Marshall’s opinion for a unanimous Court noted that the word “expressly” had been omitted from the Tenth Amendment, unlike the Articles of Confederation. This indicated, said the Court, that the framers of the Constitution intended the Necessary and Proper Clause, or Elastic Clause, in Article I to give Congress implied powers. Therefore, the Court declared that Congress had the power to establish a national bank, although it was not specifically listed in the Constitution, and Maryland did not have the power to tax a bank created by the federal government.

When Marshall died in 1835, Roger Taney became chief justice of the United States. Appointed by Andrew Jackson, Taney supported a states’ rights philosophy. He promoted a doctrine of “dual sovereignty,” in which both the states and the national government were supreme within their spheres of action. Even after the Civil War, this doctrine dominated Supreme Court interpretations of the Tenth Amendment. In Hammer v. Dagenhart (1918), the Court ruled that Congress did not have the power under Article I’s Commerce Clause to prohibit goods produced by child labor from interstate commerce. Such regulation of social policy, said the Court, was a local power reserved to the states under the Tenth Amendment.

But during the Great Depression and World War II, the Supreme Court began to recognize a more expansive view of national power. In United States v. Darby Lumber Company (1941), the Court held that the Tenth Amendment was merely a “truism that all is retained which has not been surrendered” to the national government, not an independent source of states’ rights. In Darby, the Court overruled the Hammer decision and upheld the power of Congress to set wage and hour regulations for employees of companies engaged in interstate commerce.

The Supreme Court vacillated on the proper balance between state and federal power during the 1970s and 1980s. But under Chief Justice William Rehnquist, the Court has issued a wide range of decisions reaffirming the role of the states and limiting the powers of Congress. In Printz v. United States (1997), for example, the Court struck down the Brady Handgun Violence Prevention Act, which required state and local law enforcement officers to conduct background checks before a person could purchase a handgun. The Court ruled that the law exceeded Congress’s power under the Commerce Clause, because it infringed on the system of “dual sovereignty” created by the Constitution, including the Tenth Amendment.

From 1995 to 2002, the Court has consistently curtailed federal authority, striking down more than twenty-five laws enacted by Congress. From 1937 until 1995, conversely, the Supreme Court overturned just one federal law as exceeding the commerce power.

“Are reserved to the States respectively, or to the people”

The debate over the proper meaning of the Tenth Amendment has not taken place only in the courts. Battles over federalism fueled American politics for centuries and led to the greatest threat to the U.S. Constitution- the Civil War. Sectional strife characterized the American nation from the beginning, and was pushed to the breaking point by disputes over slavery.

The modern-day civil rights movement also resurrected struggles between the federal government and the states.
The doctrine of states’ rights was promoted by two of the nation’s founders, Thomas Jefferson and James Madison. During disputes over the Alien and Sedition Acts of 1798, which they regarded as unconstitutional, Jefferson and Madison advocated the idea that states could declare acts of Congress unconstitutional. During this time, the Federalists, the political party that had drafted the laws, also dominated the federal courts.

Jefferson’s Kentucky Resolution and Madison’s Virginia Resolution, passed by the legislatures of those states, declared that when the federal government exceeded its powers, the states could refuse to obey. In Madison’s words, the states are “duty bound to interpose for arresting the progress of the evil.” Jefferson’s election to the presidency in 1800 resolved the crisis, because he allowed the Alien and Sedition Acts to expire.

Madison’s language of interposition, or nullification, came back to haunt him. During the War of 1812, known as “Mr. Madison’s War,” New England states threatened to secede at the Hartford Convention in 1814.

But the war ended soon thereafter, and New England’s vital trade with Great Britain resumed. Less than twenty years later, South Carolina also threatened to secede over trade problems due to high federal tariffs. Vice President John Calhoun of South Carolina quoted Madison in a famous address supporting nullification. Calhoun resigned his office to oppose President Andrew Jackson over the nullification issue. Only when Congress authorized Jackson to use force to collect the tariff, and a compromise tariff was also passed, did South Carolina back down. But in 1860 South Carolina finally did secede, followed by ten other southern states. The ensuing Civil War cost more than half a million American lives. Only after the war was over did the Supreme Court declare in Texas v. White (1869) that the Constitution “in all its provisions, looks to an indestructible Union, composed of indestructible states.”

During the 1950s, Southern states renewed their claim of states’ rights after the Supreme Court ruled in Brown v. Board of Education (1954) that public schools must be desegregated. In early 1956, both Alabama and Virginia passed nullification resolutions. In March, one hundred members of the U.S. Congress issued the Southern Manifesto, protesting “the Supreme Court’s encroachments on rights reserved to the states and to the people.” These legislators argued that education had long been the province solely of state and local governments, and the federal government had no right to intervene. Several southern states established “sovereignty commissions” to fight integration.

Two presidents called in U.S. troops to enforce desegregation orders of the federal courts. In 1957, Dwight Eisenhower ordered the 101st Airborne Division to protect the “Little Rock Nine,” the first black students to attend Central High School in Little Rock, Arkansas. In 1962, John F. Kennedy sent federal troops to end rioting at the University of Mississippi when James Meredith became the first African American to enroll there.

During the civil rights movement, the federal government established its supremacy over the states, at least regarding equal opportunity in education. But the debate over the proper balance between state and federal power continued. President Ronald Reagan promoted a “New Federalism” in the 1980s to reduce the size and cost of the federal government. And President Bill Clinton declared during his second term that “the era of big government is over.”