The Tenth Amendment | The National Constitution Center | US government and civics | Khan Academy
Articles,  Blog

The Tenth Amendment | The National Constitution Center | US government and civics | Khan Academy

– [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.


Leave a Reply

Your email address will not be published. Required fields are marked *