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 confirms “the understanding of the people at the time the Constitution was adopted” 1 that the powers not delegated to the federal government by the Constitution are “reserved to the States respectively, or to the people.” 2 In this sense, the Amendment is merely declaratory—a “truism” that “all is retained which has not been surrendered.” 3 Justice Joseph Story characterizes it as a “mere affirmation” of “a necessary rule of interpreting” the Constitution:

The Tenth Amendment’s purpose should be understood in the context of the Bill of Rights, of which it is a part. As originally drafted, the Constitution did not include a bill of rights, which was rejected when proposed late in the Constitutional Convention.5 The Federalists argued that because the national government had limited and enumerated powers, there was no need to protect individual rights expressly: “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [in the Constitution] by which restrictions may be imposed?” 6 On this view, including a list of rights in the Constitution could be “dangerous” because it might be misunderstood to imply that the national government had powers beyond those enumerated.7

The argument against including a bill of rights did not persuade many state ratifying conventions, however, and several states assented to the Constitution on the understanding and expectation that a bill of rights would quickly be added.8 The first Congress accordingly proposed twelve amendments, ten of which were ratified by the requisite number of states and became the Bill of Rights.9

The last of these first ten amendments addressed the Federalists’ concern that a list of rights might imply the federal government had powers beyond those enumerated. The Tenth Amendment thus served to “allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” 10

Unlike the analogous provision in the Articles of Confederation,11 both houses of Congress refused to insert the word “expressly” before the word “delegated” in the Tenth Amendment.12 James Madison’s remarks during the congressional debate on the Amendment are also notable: “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.” 13

Footnotes

1

United States v. Sprague, 282 U.S. 716, 733 (1931).

2

U.S. Const. amend. X.

3

New York v. United States, 505 U.S. 144, 156 (1992) (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).

4

3 Joseph Story, Commentaries on the Constitution of the United States § 1900 (1833).

5

2 Max Farrand, Records of the Federal Convention of 1787, at 341–42, 587–88, 617–618 (1911) [hereinafter Farrand’s Records].

6

See The Federalist No. 84 (Alexander Hamilton).

7

Id. For the Antifederalists, of course, the absence of a bill of rights was a primary reason to oppose ratification of the Constitution. See, e.g., George Mason, Objections to this Constitution of Government (1787), reprinted in 2 Farrand’s Records, supra note 5, at 637–38 ( “There is no Declaration of Rights . . . .” ).

8

See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 568–70 (1985) (Powell, J., dissenting) (reviewing this history and noting that “eight States voted for the Constitution only after proposing amendments to be adopted after ratification” ).

9

See Intro.3.2 Bill of Rights (First Through Tenth Amendments).

10

United States v. Darby, 312 U.S. 100, 124 (1941).

11

Articles of Confederation, art. II ( “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” ).

12

Annals of Cong. 767–68 (1789) (defeated in House 17 to 32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150–51 (1971) (defeated in Senate by unrecorded vote).

13

2 Annals of Cong. 1897 (1791).