The Bill of Rights: The Tenth Amendment

Elkanah Tisdale, “Town Meeting” illustration from “M'Fingal : a modern epic poem, in four cantos by John Trumbull.” Library of Congress.

The Tenth Amendment: 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.

The Tenth Amendment is one of the true foundational amendments of our Constitution. It reserves for the states all rights not granted to the national government by the Constitution, guaranteeing a federalist type of administration.

“Federalism” is a political system that splits power between a central government and the governments of the many states which comprise the nation. This division of authority is spelled out in a written constitution.

Additionally, the local governmental structure (legislative, executive, and judicial branches) always reflects that of the national system, just on a more local scale. Importantly, the people elect representatives to both the national and regional governments and generally require the two bodies to work together.

Our Founders had already experienced the issues of a “confederation” style of government (our Articles of Confederation), which conferred more power to the states and less to central officials. They knew we needed a stronger national authority, or our country would not survive.

However, they also remembered the reason they fought the Revolution was to get rid of a stifling central power. Anti-Federalists like Patrick Henry of Virginia were concerned that certain sections of the new Constitution granted Congress too many powers.

Henry worried about the so-called “sweeping clauses”, those sections of the Constitution which granted broad powers to the national government. Specifically, he was concerned about the “General Welfare Clause”, the “Necessary and Proper Clause”, and the “Supremacy Clause”.

Article 1, Section 8, granted Congress the power to collect taxes “to pay the Debts and provide for the common defense and general welfare of the United States.” The authority to raise taxes was new to the central government, significantly increasing its reach.

Additionally, Article 1, Section 8, granted broad powers to the national government by declaring Congress shall have power “To make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution.”

Lastly, Article 6, 2nd paragraph, contains the “supremacy clause” which states, “This Constitution, and the Laws of the United States…shall be the supreme Law of the Land.” This statement rendered the states secondary to the central government in all matters where the Constitution granted a power to the national government.

Not surprisingly then, when the states submitted their own demands for a national bill of rights, the first amendment on most of their wish lists was one protecting state sovereignty. Maryland, for example, proposed, “That Congress shall exercise no power but what is expressly delegated by this Constitution.”

Likewise, Robert Lansing of New York submitted, “That no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states.”

These delegates used the word “expressly” in their proposals to prevent the national government from assuming “implied” powers, those not specifically granted but required to execute their tasks. James Madison, however, felt using the word “expressly” in the context of controlling the central government’s authority would cripple the new federal government by overly restricting it.

He knew that Article II of the Articles of Confederation had included “expressly” in its declaration of state’s rights restrictions on the federal government, and by doing so, had made the central government relatively powerless and inefficient.

Rather than repeat this mistake, Madison left out the word “expressly” when he drafted the amendment’s final version. Madison reasoned, “it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication.”

WHY IT MATTERS

So why does it matter to us today that the Tenth Amendment grants to the states all powers not granted to the national government? This amendment guarantees to all of us a federalist system of government, one which acts a natural check on a distant central power. One which grants significant authority to legislative bodies closer to us geographically and more in tune with our specific needs.

Instead of unknown and, perhaps indifferent, officials in far-off Washington, DC deciding how we would live, the Founders vested most administrative authority in the states, closer to home. In a country as vast as ours, it seems reasonable to assume local people can better manage local issues.

The Tenth Amendment allows the people in Georgia to decide what is best for Georgians and Wisconsinites to decide what is best for those living in Wisconsin. It is a great system, and we have our Forefather’s vision to thank for that.

SUGGESTED READING

The Library of America (not to be confused with the Library of Congress) publishes significant works of American literature. One of their offerings is “The American Revolution, Writings from the War of Independence, 1775-1783”. As the title suggests, it contains first-hand accounts of our Revolutionary period.

PLACES TO VISIT

Scotchtown is a plantation in Beaverdam, VA, about 30 miles north of Richmond, that was Patrick Henry’s home from 1771-1778. Beautifully preserved by Preservation Virginia, it includes restored great house and plenty of information on Patrick Henry’s legacy.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.