Myth: Current federal powers violate the 10th amendment.
Fact: The 10th amendment is a moot curiosity.
The 10th amendment says that the federal government may not assume powers not permitted to it by the Constitution. Conservatives argue that much of today's federal government exceeds its constitutional mandate, and is therefore unconstitutional. However, most expansions of federal government have been contested in the Supreme Court for their constitutionality. The court has overturned some of these expansions, and upheld others. Therefore, the state of today's federal government has passed constitutional muster.
The 10th amendment states:
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.
Conservatives view this amendment as a life-saver. It says that the federal government cannot assume any powers not specified by the Constitution. Expansions of federal power beyond the Constitution, then, are unconstitutional. Conservatives go on to argue that the massive expansion of the government that followed the New Deal in 1933 are a violation of the 10th amendment.
The problem with this argument is that it is trivially true, in the way that all things besides oranges are non-oranges. The constitution grants the federal government enormous powers, a fact which is not harmed by the observation that extra-constitutional powers are not constitutional. As the Supreme Court has ruled: ''The amendment states but a truism that all is retained which has not been surrendered." (1)
So the conservative's appeal to the 10th amendment only begs the question: what powers does the Constitution grant the federal government?
The vast majority of expansions of federal government have been contested before the Supreme Court as unconstitutional. Sometimes the Supreme Court has struck down these expansions as unconstitutional; sometimes it has upheld them as constitutional. What we have today, then, is a federal government that has passed constitutional muster. Conservatives may disagree with the rulings, but then they must explain what kind of system they would like that would produce the kind of rulings they desire. A Congress that passes laws without that troublesome, irritating Supreme Court? A Supreme Court that seats only conservative judges? (Denying representation to half of America, of course...) Any changes would surely be disimprovements.
A look at the history of this amendment also reveals that the Founding Fathers did not intend it to be a severe brake on federal powers. This is proven by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated.'' (2) It turns out that the 10th amendment is a historical curiosity, stripped of its teeth by the politics of the time. When the anti-federalists proposed the amendment, they intended it to be a strong limitation to federal powers. But they failed; the federalists managed to pass a wording that left implied federal powers intact, as well as undefined powers "to the people." Most historians, constitutional scholars and Supreme Court rulings have regarded the 10th amendment as the unsuccessful attempt that it was.
A closer look at the history of the 10th amendment can be found at The Tenth Amendment: Reserved Powers and Scope.
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1. United States v. Darby, 312 U.S. 100, 124 (1941).
2. Annals of Congress, 1897 (1791).