The Tenth Amendment

- [Kim] Hi, this is Kim from Kahn Academy and today I'm learning about the 10th Amendment to the Constitution, the last amendment in the Bill of Rights. The Bill of Rights was added in order to calm some of the fears held by those who felt that the new, stronger central government under the Constitution might infringe upon the powers of the states or on individual liberties. The 10th amendment was specifically designed to allay those fears. It 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. So what does this actually mean? To learn more, I sought out the help of some experts. Randy Barnett is the Carmack Waterhouse professor of legal theory at the Georgetown University Law Center and director of the Georgetown Center for the Constitution. Robert Schapiro is the Asa Griggs Candler professor of law and dean of Emory Law School. So, Professor Barnett, can you tell us a little bit just about what that means? It's a little dense. - [Prof. Barnett] During the ratification debates there was lots of opposition to the Constitution. In fact, the Constitution only was ratified after the proponents of the Constitution, who called themselves Federalists, promised that amendments would be made to the Constitution. Because it was the lack of a Bill of Rights and other changes that caused people to oppose it. And so they said they would put a bill of rights on afterwards and at that point in these ratification conventions, conventions started proposing amendments to Congress that accompanied their ratification. So they ratified it and they said, but here are some changes we want to see made. And one of the changes that several states asked for was wording that was very much like what became the 10th amendment. A reaffirmation of the fact that the federal government was going to be one of limited and enumerated powers. - [Prof. Schapiro] And the 10th amendment is an expression of the idea that while there are more powers given to the central government of the United States it's still the case that the only power that the central government, the national government, can exercise are powers specifically given to it by the Constitution. So the 10th amendment is an embodiment of the structural principle that the only powers that the national government has are those that are delegated to it in the Constitution. As opposed to the states who have general powers within their boundaries. - [Kim] One of the things that I think we see in the Bill of Rights is many examples of the framers responding to particular historical evils that they had witnessed in England or in Europe, more generally. So was there something in particular they had in mind they were trying to prevent with the 10th amendment? - [Prof. Schapiro] I think the particular evil they were concerned with was the concern of a distant, powerful, centralized government. That had been the government of King George. They wanted to make sure that wasn't the government of President George Washington and the 10th amendment states that the national government is not an all powerful body with general authority to do whatever it wants. It's in line with the structure of the Constitution which says there are certain powers given to the national government, there certainly are definite powers given to them but only some powers. And that idea of being concerned of a distant, strong government far away from the people is really what underlies the principle of the Constitution. And that's what we see in the 10th amendment, specifying that the powers not delegated to the United States by the Constitution are reserved to the states. - [Kim] So what would you say is important about the 10th amendment? - [Prof. Barnett] It reaffirms that the basic structure of the Constitution is one of limited and enumerated powers. How limited, of course, is a matter of debate. But the fact that they are limited and that all other powers are reserved to the states respectively or to the people is now a matter of Constitutional law, it's a matter of the text. The other thing that's interesting about the 10th amendment is that in Congress they added the phrase, or to the people at the end. The states did not propose that language. The states proposed the wording of the 10th amendment and it just would have stopped where it said are reserved to the states. And so that made the ninth amendment less a states' rights provision than the states had wanted and less a states' rights provision than people read it today. So the people have rights. In fact, nowhere in the Constitution does it say anyone except individuals or persons have rights. It doesn't say states have rights. The 10th amendment is about reserved powers and those are the powers that the people have to govern themselves as well as other powers and what this shows is that the people not only have rights they also have powers. Perhaps the most important thing, however, is to note that these two are separate provisions. That the Supreme Court has sometimes read the 10th amendment, or the ninth amendment, as meaning basically the 10th amendment that the people have reserved powers. But we know they're different because they are put in there separately and in fact Madison placed a much higher premium on the importance of the ninth amendment as opposed to the 10th. - [Prof. Schapiro] The 10th amendment and the ninth amendment really speak to the structure of the Constitutional system, what it means to have a Constitution setting up a national government, The 10th amendment is really a statement of the overall structure of what we call Federalism. Certain powers given to the national government and then powers reserved to the states. The ninth amendment speaks more to the rights side of things, that is, we have certain rights which are set forth in the Bill of Rights. The first amendment about freedom of speech and religion, the fourth amendment about protection against unreasonable searches and seizures, and there was some concern expressed in the late 1700s that if you specified those rights, did that somehow mean that the national government could do whatever else it wanted? And so the ninth amendment says, the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. So it's in line with the idea that national government has certain powers but they are limited because other powers are reserved to the states. And the power of the national government may also be limited because there are rights that are reserved to the people. - [Kim] How do you think the 10th amendment tells us that the framers intended the federal government and the state governments to relate to each other? - [Prof. Schapiro] The 10th amendment really is a little more about structure than about specific content. So I think the 10th amendment embodies the idea that we should think carefully about what are the powers given to the national government, understanding that whatever's given to the national government may take powers away from the states. And so the 10th amendment is really a text that embodies the overall principle of Federalism that is implicit throughout the United States Constitution. - [Prof. Barnett] In fact, the 10th amendment is in some respects kind of a replay of the first sentence of Article One that says that Congress only has the powers herein granted. States have the powers, by contrast, and the 10th amendment affirms, the states have the powers that are not granted to the federal government but are granted to them under state constitutions. So just as the federal government has the powers it has under the US Constitution, state governments have the powers they have under state constitutions and the people reserve all other powers to themselves. - [Kim] So how has the 10th amendment been interpreted by the Supreme Court over time? I imagine there have been some cases about this as the federal government has gotten more powerful. - [Prof. Schapiro] Exactly, so the 10th amendment, which really is just about the structure of government, saying some power is given to the national government and there's a concern about the power reserved to the states, the understanding of that has really evolved with the understanding of the breadth, of the power of the national government. And what we've seen over the course of history in the United States is that there's been a broader understanding of the power of the government of the United States. That expansion has really come mainly in two forms. One is with regard to the government's power to regulate interstate commerce and the broad interpretation of the national government's power to regulate commerce. We saw that particularly in the context of the great depression when there was viewed to be tremendous social dislocation, tremendous economic problems in the United States to the point at which some feared that the American democracy might collapse. And the national government then was allowed to exercise more authority over the economy. - [Prof. Barnett] The Supreme Court, in the New Deal, declared the 10th amendment as a truism, meaning as long as you find a power then you can't have a 10th amendment objection to that power. That's right, as a logical matter, except that if you continue to expand your interpretation of those powers then you are basically violating the spirit, if not the letter, of the 10th amendment. And finally then, during the Rehnquist Court, until today the Supreme Courts started using the 10th amendment to enforce the spirit of the Constitution which preserved the existence of states even when Congress was claiming powers that went far beyond those that were originally mentioned in the Constitution's text. - [Prof. Schapiro] So, in some cases in the early 20th century you did see the United States Supreme Court interpreting the 10th amendment to limit, to some extent, what the national government could do if, say, the issue were child labor or minimum wage laws, things like that. A question is, is that really something that the national government can do? But in the wake of, we say, the New Deal legislation that was put forward by Congress in the great depression of the 1930s and approved by the Supreme Court, we've seen the Supreme Court take a much narrower understanding of the 10th amendment. Or, again, we can really see the 10th amendment in balance with the power of the national government. And as we've understood a broader role for the national government the role reserved to the states has shrunk. - [Kim] This is fascinating. So one thing that interests me about this in terms of US history is the way that later on the 14th amendment is interpreted to incorporate the Bill of Rights in to the states. So how does the 14th amendment's protection of equal citizenship rights then intersect with the idea that states have certain individual powers? - [Prof. Schapiro] So certainly in the wake of the Civil War we saw the 13th, 14th, and 15th amendments. The 13th amendment banning slavery, the 14th amendment guaranteeing rights of national citizenship and equal protection and due process and the 15th amendment guaranteeing the right to vote, all of which expanded the power of the national government and particularly the 14th amendment and its guarantee of equal protection of laws and due process of laws were really new national restrictions on state authority, a new empowerment of the national government to protect individuals no matter what state they were. So since the structure of the 10th amendment is not about protecting a particular body of power, it would be natural that as the 14th amendment expands the role of the national government that there'd be less for the states to do completely immune from federal intrusion. - [Prof. Barnett] The 14th amendment represents a fundamental change to our system of Federalism. Precisely because it has a section five in the 14th amendment which empowers Congress to enforce the provisions of the previous four sections including section one which has the citizenship clause and the privileges or immunities clause and the due process clause and the equal protection clause. So Congress is given an enumerated power to protect individuals from their own state governments violating their fundamental rights under those section one provisions. That's a change in our Federalism that is consistent with the 10th amendment because it's a power that is delegated to Congress by the Constitution, by section five of the 14th amendment. What happened to that, however, immediately after it was enacted is the Supreme Court decided, and I think quite consciously in their minds decided, that this change in our system of Federalism was objectionable. In fact it was the product of radical republicans in Congress and it really needed to be undone. And so in one of the earliest examples of what I would call living Constitutionalism, in a series of cases the Supreme Court cut back on the powers of Congress to protect individuals from the rights of their citizens in cases like the Slaughterhouse cases or United States versus Crookshank, or Plessy versus Ferguson. These are cases, the civil rights cases are more in which the Supreme Court actually cut back on the scope in order to restore the Federalism that existed prior to the Civil War that the justices preferred. - [Prof. Schapiro] I think based on its text and its interpretation over time we see the 10th amendment really being a recognition of the Federalist structure of the United States Constitution, meaning there will be a national government and there will be states. And that has not changed over time. What has changed over time is an understanding about the scope of the role of the national government. How much power the national government needs either to regulate the national economy or to protect individual rights. Certainly the interpretation of the interstate commerce clause and the enactment of the 14th amendment have been key elements in expanding the role of national power. - [Prof. Barnett] But all of this expansion of national power is completely consistent with the language of the 10th amendment which again does not specify any particular kind of power reserved to the states. It just recognizes that there will be a national government and there will be states. - [Kim] So how have the courts been utilizing the 10th amendment in recent years? - [Prof. Barnett] In recent years the courts have been using the 10th amendment not so much for what it says but for its spirit. The idea that it reaffirms the importance of states in our Constitutional structure. What's happened since the New Deal is the powers of Congress under its enumerated powers have been so broadly or expansively interpreted that if they were all to be applied to states they way they are applied to private individuals and private companies essentially Congress could basically run all the states using it's commerce power combined with its necessary and proper clause power, et cetera. What the Supreme Court has done in recent years is said this violates the first principles of our Constitutional order which says states are important, the 10th amendment affirms that. And therefore they've created certain carve out or special protections for states from these broadly or expansively read Congressional powers. None of this is really stemming from the original meaning of the 10th amendment because what's already happened is the original meaning of the enumerated powers has already been exceeded. But what it's attempting to do is to keep in place the balance between federal and state powers that the 10th amendment represented. But doing so in a way that's basically modern. It's adding the states to a list of protected entities, protected from expansive federal power. - [Kim] So we've learned that the 10th amendment reaffirms that the federal government of the United States will be a limited government with enumerated powers. But as the scope of the federal government has grown so has debate over the interpretation of the 10th amendment. Which actions of the states can the federal government regulate and which exceed federal power? To learn more about the 10th amendment visit the National Constitution Center's interactive Constitution and Khan Academy's resources on US government and politics.