The Tenth Amendment (Or, whose got the power?)

Posted by Steve Jackson on Feb 6th 2024

The Tenth Amendment (Or, whose got the power?)

2-minute read

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.

Ratified December 15, 1791. The tenth amendment of the Bill of Rights

On the surface this one sentence directive seems fairly clear. But I will use two paragraphs to help to explain that “clear” sentence.

If the Constitution does not award a power to the federal government, then the federal government cannot claim it. If the Constitution does not prohibit a state to claim a particular power it can. If neither can claim it then that power defaults to the state or the people in general to claim.

Put another way, the federal government cannot claim a power that the Constitution didn’t give it. However, that power can be claimed by the state if the Constitution didn’t prohibit it. But if that power was prohibited to the state, then the next entity in line that can wield that power are the people if they so choose or just ignore it.

It took decades for lawyers and judges to apply it until a few cases helped to clarify it… a little at a time. That murkiness continues to this day.

The writers of the Constitution were wary of future attempts to grab powers that weren’t there. For instance, James Monroe and his staff specifically did not use the word “expressly” to describe the word “delegated” so as to leave no doubt that a sneaky federal government could not invent a power just because it was not “expressly delegated. “

The interpretation of the Tenth Amendment varied from court to court as our country’s legal system became more and more complicated. A ruling on one case would be overturned by a subsequent judge presiding over a similar case.


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