The Misinterpreted 10th Amendment: It Doesn't Do What Many Think it Does

In last week's Republican debate there were several mentions of the 10th Amendment to the Constitution and how it confers rights to the states. Several of the candidates said they believed in that Amendment and would enforce it and by that they clearly meant they believe in limiting the powers and actions of the federal government. However, their interpretation of the 10th Amendment is wrong.

Even though neither this Amendment, nor any other provision of the Constitution conveys the right, some of the Founders, including Jefferson and Madison, as well as Southern leaders such as John Calhoun, believed that the 10th Amendment gave states the power to nullify acts of Congress and that it limited the power of the federal government. The Civil War and Supreme Court decisions settled the question whether there are any Constitutional bases for either secession or nullification. There are not. However, there still are legions of people - and many websites - that promote the idea that the 10th Amendment limits the powers of the federal government and creates states' rights.

There is little doubt that the 10th Amendment was intended to preserve some state powers, and their role in the federal system. While considering the ratification of the Constitution, all thirteen states proposed some version of what became the 10th Amendment. Only eleven years had passed since the states were separate colonies, operating quite independently of one another. Having fought to get free of English authoritarianism, they were wary of giving up too much power to any other government.

This was a particularly sensitive issue in the South because of slavery. A number of northern states wanted slavery abolished. Southern states would not have joined with the northern states in creating the United States if slavery had been abolished, or if they believed the federal government could abolish it without their consent. The 10th Amendment was one of the compromises intended to preserve some state powers and put some limits on federal power. 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."

Those who drafted it were very clever. The principal authors of the Constitution intended for the United States to have a strong national government. They were trying to solve the problems that occurred under the Articles of Confederation that did not provide for a strong central government. They also did not want individual states to have veto power over the federal government as they did under the Articles.

Not enough attention has been given to the exact wording of the Amendment, in particular, the last clause: “OR to the people.” In fact, the Supreme Court, as recently as in its voting rights decision in 2013, misstated the words of the 10th Amendment, and that was not the first time.

The authors of the Constitution were experts in the use of language, and in the construction of legal documents. Under any form of statutory construction, the use of the comma followed by the word "or" presents an alternative to the previous phrase. And the Constitution also clearly differentiates between the states and the people. The use of the word "people" in that last phase presents an alternative to the powers of the states - the power of the people, not of individual states.

The use of the word “people” in the Constitution, from the “We the People” of the Preamble on, means all the citizens of the United States separate from whatever identity they may have with individual states. There was a draft of the Preamble that used the words, "We the States," but it was changed to emphasize the nature of he Constitution and its effects. The Constitution was intended by the founders to be a compact among the people of the United States, not between the federal government and the state governments, or among the state governments. The people are citizens of the United States, not of individual states.

Ratification of the Constitution was required to be done by state conventions representing the people, not by state legislatures.  The authors of the Constitution clearly intended that the citizens of the United States bind themselves, their descendants, and their states, together, forever, in the compact, the Constitution. This appears to have been recognized by a number of Southern states when they seceded from the Union. In several states, the act of secession was done through conventions of citizens, “the people,” not by the state legislatures.

There is another problem with the idea that powers not specifically granted to the federal government are reserved to the states. That problem - and it is a big one - is the "necessary and proper" clause, the last paragraph of Article I, Section 8 of the Constitution. This section enumerates numerous powers of Congress, and after specifying those powers, that paragraph reads:

"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 in the Government of the United States, or in any Department or Officer thereof."

When Alexander Hamilton's proposal for a national bank was opposed by Jefferson, Madison and Adams on the grounds that Congress did not have the specific power to create a bank, Hamilton's response was a memo to President Washington in which he argued that the "necessary and proper" clauses gave the federal government the implied power to create a bank because it had the express power to regulate commerce. He wrote that any express power carried with it, out of necessity, all legitimate implied powers necessary to exercise that power.

He went even further, turning the entire opposition argument upside down. He argued that rather than having limited powers, that in the areas of federal responsibility, the “necessary and proper” clause essentially gave the national government the power to do almost anything not specifically prohibited, or illegal.

In 1819, Chief Justice John Marshall relied on Hamilton's memo in the landmark case, McCullough v. Maryland, in which the Supreme Court ruled that Congress had the power, under the “necessary and proper” clause to create a national bank. That decision is one of the most important in the history of the Supreme Court and that interpretation of the "necessary and proper" clause remains in effect today. The only specific limits on the power of Congress are those in the Constitution and those that the Supreme Court has found to exist on various occasions.

Thus the assumption that the 10th Amendment gives powers to the states if they are not expressly granted to the federal government is wrong. It also does not limit the power of the federal government.

The Constitution provides for the states to maintain some rights and responsibilities, but none that can trump those of the federal government. The Constitution clearly states that it, and federal laws adopted under it, are the supreme law of the nation. The Constitution provides for no means of changing it except by amendment; no means of dissolution of the union; no right for any state to withdraw from the union; no right for any state to wage war against any other state; no right for any state to engage in foreign affairs; no right to determine, or grant, citizenship; no separate citizenship of states; no right to restrict the rights of citizens to vote.  

That last phrase of the 10th Amendment means that the reserved power is shared between the states and the people. It does not create a body of absolute “states' rights.” It means that states have the power to act where the federal government has not, and when such acts will not conflict with federal laws or responsibilities.
However, it also means that the people have the right to take action under similar circumstances.

Since the people, the citizens of the United States, elect the Congress and the President of the United States, this clause gives broad power to the people to act through their elected Congressional representatives, not just through their states.  In other words, it permits the people, acting through their elected representatives, to decide that the federal government should have a power not expressed, or implied, in the Constitution.