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The Genius And The Abuse Of The Tenth Amendment

Updated on October 21, 2012

The Genius and the Abuse of the Tenth Amendment

I am returning as promised to some Constitutional analysis. Approximately eight months ago I wrote a Hub entitled "The Genius And The Neglect Of The Ninth Amendment". The Ninth and Tenth Amendments were ingenious creations written to secure wavering votes in favor of ratifying the newly proposed United States Constitution. The Tenth Amendment reads as follows, "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 the people". This amendment was included to appease the Constitutional Convention delegates and the state legislatures who feared a powerful and imperious central government. James Madison wrote most of the early outlines of the Constitution and knew that the weak central government of the current governing document, the Articles of Confederation, had placed the country in chaos and towards possible dissolution. He gave the new federal government many powers in the fields of interstate commerce, national defense, taxation, printing money, as well as several others. The Tenth Amendment was written to limit the new federal government to only the enumerated powers in the Constitution and nothing further. It allayed the fears of many in the country that our new government might evolve into an all powerful tyranny.

The Ninth and Tenth Amendments were both written to placate doubters of the new Constitution. The Ninth announced that the previous eight amendments of the Bill of Rights were not the only rights that were ever to be declared or inferred. This should have made it an expansive amendment. The Tenth restricts federal powers and thus should have been restrictive. In actuality, both have proven to have had the opposite results in regards to their use during the ensuing years. The Ninth has rarely been cited in court cases while the Tenth has been used by the States to justify many practices and laws that restricts the rights and harms many of its citizens. In this article, I will discuss three areas where I believe the states have or are abusing the Tenth Amendment. The first area will be in regards to slavery and civil rights issues that have plaqued our country from its very inception. Then I will turn to some social issues that we have been dealing with in recent decades. Thirdly I will address two issues that the Supreme Court ruled on in the final week of its last session. Finally I will sum up the issues that I have addressed in this article and offer some analysis of this history along with the possible future of Tenth Amendment legal cases.

The original sin of the United States was the ugly institution of slavery. In fact, Section 9 of the U.S. Constitution prohibited the Congress from banning or regulating it until 1808. The pro-slavery states fought this issue after 1808 on the grounds of states rights by way of the Tenth Amendment. They argued that nowhere in the Constitution was the federal government given authority over the slave trade thus leaving it up to the states. I believe this was a gross misinterpretation of the Constitution. Congress clearly had authority to regulate the slave trade after 1808 because of their predominance in both international and interstate commerce. They also could have banned slavery on human rights grounds which would have been then subject to United States Supreme Court review. This was the first major instance where the states invoked the Tenth Amendment and they continued to do so until the Union troops prevailed over the Confederacy at the conclusion of the Civil War. Slavery was constitutionally abolished after the Civil War by way of the ratification of the Thirteenth Amendment.

The newly freed slaves were given all the rights and opportunities afforded all American citizens during the Reconstruction period of 1865-1876 by way of the Fourteenth and Fifteenth Amendments. Unfortunately the country and its leaders became weary of the constant conflicts over civil rights and pulled the Union troops from the southern states in 1876. This left these states on their own to legislate their own policies in regards to African Americans regardless of the new amendments. New "Jim Crow" laws were gradually implemented soon after this period. These laws segregated African Americans from the ruling White population as well as severely limiting their rights as citizens. This Jim Crow era lasted in to the mid 1960s.

The first dent in this segregation armor came by way of the 1954 "Brown v Board of Education of Topeka" United States Supreme Court ruling. The court unanimously decided that the "Separate But Equal" policy of segregated schools actually created unequal conditions and was thus unconstitutional. The opposition vehemently objected on the grounds that the states had the only authority in these local cases by way of the Tenth Amendment. The Court overruled this on the grounds that it violated the "Equal Protection Clause" of the Fourteenth Amendment. The Jim Crow era finally ended in the 1960s when the Johnson Administration pushed through the Civil Rights and Voting Rights Acts that officially made Jim Crow practices illegal. This was a monumental victory for civil rights in America and a major defeat for states rights proponents. It certainly would not be the last Tenth Amendment fight.

Two other social issues that have and are being argued under the auspices of the Tenth Amendment are abortion and same sex marriage. Abortion had always been a state and local issue until the Roe v Wade case of 1973. The Supreme Court ruled that all government prohibitions on abortion were unconstitutional due to a "right to privacy" under the due process clause of the Fourteenth Amendment. Many states have passed various restrictions on abortion during the subsequent years. Almost all have been ruled unconstitutional. The increasingly conservative Court has been allowing some limited restrictions on abortions. Some are reasonable such as for trimester abortions where the woman's health is not in danger. Most are technical regulations that have only been passed to force abortion clinics to close. Many states still feel that they have primary authority regarding these procedures by way of the Tenth Amendment. These cases are winding their way up to the Supreme Court. This legal and constitutional struggle will continue for some time.

Same sex marriage has now emerged as a major issue on the national and state political scenes. States have been wrestling with this controversy for over a decade. Many progressive leaning states tried to settle the issue by passing "Civil Union" laws that gave gay couples all the rights and benefits of married heterosexual couples without using the term marriage. Gay rights activists were pleased to receive these new rights and benefits but they were not satisfied. They firmly believe that gay couples are entitled to be married in exactly the same way heterosexual couples are. They defend this view as an equal rights argument. Six states have now legalized same sex marriage. Several others are considering this legislation. On the other hand, many states have refused to even entertain the idea of giving gay couples any rights or privileges. Forty one states have have laws explicitly banning same sex marriage.

The federal government was never involved in marriage issues until 1996 when the Defense of Marriage Act (DOMA) was passed. This law stated that a marriage could only be legally binding if it was between a man and a woman. However this law does not prohibit the states from defining marriage as they saw fit. The same sex marriage issue seems to be heading to the U.S. Supreme Court. Two prominent lawyers, David Boies and Ted Olson, have taken up the cause. Boies is considered a liberal while Olson is a conservative. They opposed each other during the Bush v Gore case in 2000. They totally agree in supporting same sex marriage and together they are lending their bipartisan weight to this case on the side of the Gay Rights Activists. There are two prominent cases working their way up the judicial system. There is a Massachusetts case which could decide the constitutionality of the DOMA case. A California case might decide whether the state laws banning same sex marriage are constitutional. One or both cases could be on the Supreme Court's docket next term.

The last week of the United States Supreme Court's last term produced two monumental decisions which were either directly or tangentially decided on Tenth Amendment grounds. The first was the overturning of three out of four parts of the Arizona SB1070 law. This was decided on the grounds that the federal government holds supremacy over the states in regards to immigration laws.

Federal law requires aliens to carry registration documents at all times. Arizona SB70 made it a state crime also. This was a clear intrusion into federal powers and was struck down. The law also required state and local law enforcement officials to fully enforce federal immigration laws. This was also struck down for its obvious overstepping of state powers in this area. Thirdly, the law made it a state crime to hire an illegal alien or for the alien to accept employment. This was also ruled unconstitutional for the same reasons. State and local police are allowed to contact federal authorities to determine the legal status of a person they stop for some other crime or violation. Even this aspect may later be ruled unconstitutional if it is abused to simply catch illegal immigrants. States were already allowed to check with federal authorities about legal status. This was the main reason this part of the law was upheld.

The Patient Protection and Affordable Healthcare Act (PPACA) was also upheld that same week by the U.S. Supreme Court on the grounds that the individual mandate to purchase healthcare insurance was a tax and therefore a power given to Congress by the United States Constitution.

The federal government won the overall victory but it was not a total win. The states are now able to opt out of the requirement that they are required to participate in the expansion of Medicaid for citizens up to the level of 133% of the federal poverty level. This is the first time the states have had the ability to opt out of part of a social safety net program. It is unclear whether all or some of these states will stay out of this Medicaid expansion. The federal payment of 100% for the first two years and 90% thereafter is a far higher reimbursement rate than before the enactment of this law. This may make this a very unsustainable political position.

Many states have refused to set up the required statewide healthcare exchanges. These are insurance pools designed to lower the costs for the newly insured. The federal government does have the authority and will step in to set up these exchanges under the new law in the absence of the state. These states are waiting for the results of the 2012 election. A Republican sweep might very well result in a repeal or severe weakening of this new law. A victory by President Obama will most certainly mean that this law will be enacted in all its parts. I believe the states will reverse themselves and set up these exchanges at that point because they will not want to cede this control to the federal government.

I have given you a brief summary of the major past and present state governmental initiatives based on Tenth Amendment arguments. Clearly this amendment has and is being used to create many political, social, and economic policies. The major questions involved regarding all of these issues are whether the federal government has jurisdiction over state governments or whether the Bill of Rights precludes a state action. The Tenth Amendment has been a clarion call to states rights advocates since the ratification of the Bill of Rights. Often this has been a righteous call to stop federal encroachment upon their jurisdictions. Many other times it has been a gross overstepping of their state powers and intrusions upon their citizens' rights.

The slavery issue was fought over the terms of the Tenth Amendment almost from the beginning of our republic. The southern states argued that slavery was simply a states rights issue. I do not believe any thought of human rights ever occurred to them. The Civil War settled the slavery issue but Jim Crow laws emerged soon after in the South and they lasted into the mid 1960s. Social issues such as abortion took center stage in the 1970s and still hold strong sway in the United States. Same sex marriage is another social issue now dominating our headlines. Immigration and healthcare reform dominated the final week of the latest Supreme Court term in June. Both issues had strong Tenth Amendment implications with mixed verdicts. What does this history tell us?

The most obvious lesson we learn is that the tug of war between the states and the federal government will always exist and is usually a beneficial process for our country. In many ways it is just another form of checks and balances for our nation. Ideally we want most of our laws written on the state and local levels because they are most in touch and closer in proximity to their constituents. We want our federal government to handle functions that cut across state lines such as commerce. Foreign policy and national defense are also natural federal powers because having fifty different entities conducting these functions would surely cause chaos and a dimunition of national power. Problems occur when the federal government invades state powers and vice versa. These issues are often quite contentious but easily resolved by the courts. More serious dilemmas arise with larger consequences when the states legislate and govern in a way that is contrary to our Bill of Rights.

Many states are now controlled by socially conservative Republicans who feel that they know what is good for their citizens regardless of the rights guaranteed to them by the United States Constitution. An amendment was written outlawing slavery and two others to ensure their rights. Other laws passed on the federal level were passed to further ensure these civil rights. Abortion rights were allowed by the Supreme Court by way of recognizing privacy rights. Same sex marriage is the next in line to test our Bill of Rights. These cases along with others accentuate the importance of this part of the Constitution. Many states would gladly trample upon some rights of their citizens without it. The history I have described in this article shows us the importance of the Bill of Rights and not just the Tenth Amendment. It was never written to usurp the first eight amendments or any others. Our citizens require a diligent and determined judicial system to protect us from these Bill of Rights incursions. This Tenth Amendment battle will most likely never end. Therefore we all must remain wary and vocal regarding these matters. Our freedoms and rights are at stake.


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    • profile imageAUTHOR

      Howard Schneider 

      4 years ago from Parsippany, New Jersey

      Thank you for your comment, Doll.

    • profile image


      4 years ago

      I reokcn you are quite dead on with that.

    • profile imageAUTHOR

      Howard Schneider 

      5 years ago from Parsippany, New Jersey

      You are absolutely spot on that states have also been in the lead for positive changes in this country, B. Leekley. Other examples are gay marriage, stronger environmental laws in California, and higher minimum wage rates in several states. Unfortunately much evil has been put forth by some states with civil rights being a prime example. You are also spot on by stating that the Preamble has been key in setting the tone for most of the positive social reforms that have evolved in this country. The original Bill of Rights is the first evidence of this. Thank you for your insightful comments.

    • B. Leekley profile image

      Brian Leekley 

      5 years ago from Bainbridge Island, Washington, USA

      Good, insightful overview.

      Haven't there also been times when states led the way to positive reform? The right of women to vote, for instance. A current instance is that states are leading the way in giving single-payer health insurance a try.

      In the tension between constitutional Federal powers and states' rights, how much of a factor has the Preamble been, which says that the whole purpose for forming the federal government is to provide for the common defense and promote the general welfare. The constitutional power to defend against all that is harmful and to promote all that is good -- what more power than that would any government need?

    • profile imageAUTHOR

      Howard Schneider 

      6 years ago from Parsippany, New Jersey

      You are quite correct, Tirelesstraveler. The courts often have a more important voice in our legislative activity in our modern era. Thank you for your comments.

    • tirelesstraveler profile image

      Judy Specht 

      6 years ago from California

      Very interesting and thoughtful article. Interesting how the courts have done so much more than congress to change laws.

    • profile imageAUTHOR

      Howard Schneider 

      6 years ago from Parsippany, New Jersey

      You are right, William. It was amazing. The Constitutional delegates knew that the continuing existence of our infant republic depended on creating a new and stronger federal government. Unfortunately, its success depended on appeasing the southern delegates at this time. They kicked the can down the road because they felt that slavery was a dying institution anyhow. Then Eli Whitney invented the cotton gin and cheap labor was again vital. You are also correct that the slaves were looked on more as commodities. Also electoral pawns since the South was successful in making each of them equal to 3/5 of a person for representational purposes. Thank you for your comments.

    • William Young profile image

      William Young 

      6 years ago from Eaglle Grove, Iowa

      I enjoyed reading that very much. More people should familiarize themselves with our Constitution. I was struck by the information that Congress wouldn't take up the matter of slavery until 1808, and then the southern states argued that it was a states rights issue after that. On a human level, it just amazes me that neither our Congress or the states talked about slaves as if there was any human aspect to them, just as property in a trade like sugar or tobacco or cotton.

    • profile imageAUTHOR

      Howard Schneider 

      6 years ago from Parsippany, New Jersey

      I am very glad that you enjoyed this Hub, Justsilvie. Thank you for your comments and sharing.

    • profile image


      6 years ago

      An excellent History lesson and analysis of the amendment. Voted up and will share this!

    • profile imageAUTHOR

      Howard Schneider 

      6 years ago from Parsippany, New Jersey

      Thank you very much for your kind comments, Billybuc. I am glad you enjoyed reading it.

    • billybuc profile image

      Bill Holland 

      6 years ago from Olympia, WA

      Excellent analysis of a complicated amendment. It was a wonderful read and a must-read for anyone interested in U.S. History.

    • profile imageAUTHOR

      Howard Schneider 

      6 years ago from Parsippany, New Jersey

      Thank you very much for your kind comments, Prakash. I am very glad that you found value in this Hub.

    • Prakash Dighe profile image

      Prakash Dighe 

      6 years ago from Dallas, Texas, USA

      Well researched and some great in-depth analysis! You've made some very pertinent points of some states intruding on our Bill of Rights. Thanks for all the information - voted up!



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