Ask anyone to recite the Bill of Rights and chances are you’ll hear about our freedom of speech, property rights, our rights against illegal search and seizure, among others. But ask about the 10th Amendment and you could receive some blank stares or puzzled looks.
The 10th Amendment reads, “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.”
What the tenth Amendment means is that any power the Constitution doesn’t give to the federal government belongs to either the states or individuals. In short, it acts as a safeguard against the ever-creeping ratchet of federal power.
Why did the Founders include the 10th Amendment in the Bill of Rights?
To answer why the Founders wrote the 10th Amendment, first we must answer the question, “Why did the Founders include the Bill of Rights in the Constitution?”
During that hot Philadelphia summer of 1787, there were two factions at odds inside Independence Hall: The federalists and the anti-federalists. The federalists believed the United States should have a strong federal government with weaker state governments.
The anti-federalists believed the United States should have stronger state governments with less power centralized in the federal government. While the debate between the federalists and anti-federalists led to many compromises and important aspects of our Constitution, perhaps the most significant is the inclusion of the Bill of Rights.
The anti-federalists wanted the Constitution to include a Bill of Rights to ensure people’s fundamental individual rights (like freedom of speech, property rights, civil liberties, etc.) would explicitly be protected. But the federalists didn’t think a Bill of Rights was necessary because they didn’t think the government would be capable of violating people’s individual rights. This belief sounds baffling today—especially to followers of SPN Partner organizations like the Institute for Justice, Liberty Justice Center, or Pacific Legal Foundation. However, the federalists believed government wouldn’t be able to violate people’s individual rights because the Constitution didn’t expressly give it the power to. As we’ve now seen, that was … wishful thinking.
Fortunately for future Americans, the anti-federalists won that debate and passed the Constitution with the understanding that a Bill of Rights would be passed along with it. In 1791, that promise was fulfilled and the 10 amendments of the Bill of Rights were ratified.
The reasoning behind most of the Bill of Right’s protections is self-explanatory. The First Amendment protects Americans’ freedom of speech and the freedom of the press, the Fifth Amendment protects Americans’ right to due process and property rights, etc. But the Ninth and Tenth Amendments were largely included was to address the fears of the anti-federalists.
The 9th Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Together with the 10th Amendment, these were meant to prevent any expansion of government power or infringement of people’s individual rights.
Has the US Honored the Intention of the 10th Amendment?
Throughout our nation’s history, government power has changed, evolved (and in some cases, devolved). It’s undeniable that the federal government’s power has expanded significantly since our nation’s founding.
While some of that is logical with the passage of time and evolution of society, so much of the power the federal government now wields is arguably outside the scope of what the framers initially intended.
For much of the nation’s early history, the 10th Amendment served as a check on many repeated attempts to expand the federal government’s power. However, during the Great Depression, Franklin D. Roosevelt set out to dramatically expand the size and scope of the federal government. In an effort to alleviate pains and hardships caused by the Great Depression, FDR pushed many massive government programs like the Agriculture Adjustment Act, the National Industrial Recovery Act, the Social Security Act, the Wagner Act, and many more. However, because many of these policies would have unconstitutionally expanded the federal government’s power, the Supreme Court struck them down, often citing the 10th Amendment.
But in 1936 and 1937, after his massive re-election victory, FDR began a campaign to “pack” the Court by expanding the number of justices and making it easier to nominate judges who would pass his policies. Because of the threat this posed to the Court by blatantly politicizing it, the Court largely stopped enforcing the 10th Amendment and allowed many of FDR’s New Deal policies to stand—subsequently massively expanding the size of the federal government.
In the last 20 years however, the Supreme Court has begun reaffirming states’ powers and enforcing the 10th Amendment in various different ways.
What Powers do States Have vs. the Federal Government?
The Constitution clearly lays out the “enumerated” or expressed powers of the federal government. Some of these include national defense, coining and regulating money, creating and operating the federal court system, borrowing or lending money on behalf of the nation, and many others.
While there are some powers that the federal government and state governments share such as levying taxes, passing and enforcing laws, and creating and enforcing laws, much of the power the federal government now holds has come without express Constitutional authority.
What Is Federalism?
Federalism is a system where some power belongs to the federal government and some power belongs to the state governments. Federalism has been proven to be a powerful (and beneficial) system of government because it creates “laboratories of democracy” across the country. This means states are free to try different policies and see what works best for their populations. For example, a good policy in Wyoming might not be effective for a state like California. Federalism allows states to adopt policies that best fit their needs.
Understanding and embracing the Tenth Amendment is an important aspect of protecting and strengthening federalism. Our nation was built on the foundation of checks and balances that protected individual rights and prevented the concentration of power. The resurgence of the Tenth Amendment and federalism is an important way to continue that tradition.