Taking the Tenth Amendment Seriously

Tea partiers have a complicated relationship with the Constitution. They frequently profess their love for the document, yet they also seek to fundamentally alter it, for example by eliminating birthright citizenship and by inserting a crippling balanced budget amendment. However, one section of the document that tea partiers appear to be absolutely smitten with is the Tenth Amendment.  Unfortunately, their boundless adoration for the Amendment seems to have prevented them from reading it very carefully.

The Tenth 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.” Tea partiers have made truly outlandish claims of late about this short and simple Amendment.  For example, both Texas Governor Rick Perry and former Alaska Governor Sarah Palin have declared the “sovereignty” of their respective states “under the Tenth Amendment,” with Perry suggesting that secession might be an option for Texas in response to what he sees as overreaching by the federal government.  Perry has also used the Amendment as a basis for attacking foundational parts of this country’s social safety net — including such landmark laws as Social Security and Medicare, as well as environmental safeguards — as unconstitutional encroachments on state rights. Senator Mike Lee has made the similar claim that even federal child labor laws are unconstitutional.

The Tenth Amendment’s text does not come close to bearing the weight the Tea Party has thrown upon it.  As an initial matter, the Tenth Amendment did not break new constitutional ground.  The main point of the Amendment was to reiterate what Article 1, Section 8 of the Constitution already made clear:  the Constitution established a federal government of delegated or enumerated powers.   As the Supreme Court has noted, the main thrust of the Tenth Amendment is “a truism that all is retained which has not been surrendered” (United States v. Sprague, 282 U.S. 716 [1931]).  That is not to say the Amendment is unimportant or devoid of meaning; to the contrary, every Clause of the Constitution should be given meaning, and the Amendment is certainly a reminder that the powers of the federal government have limits.   By the same token, no portion of the Constitution should  be given meaning it doesn’t have.

Second, the Founders and ratifiers of both the 1789 text of the Constitution and of the Tenth Amendment rejected the strict limits on federal authority that characterized the failed Articles of Confederation.   For example, a provision of the Articles limited Congress to those powers “expressly delegated” to it.  Not only does the Tenth Amendment drop  the modifier “expressly,“ the Founders also insisted upon the Constitution’s “necessary and proper” Clause, making clear that every delegated power carries with it the power “to make laws necessary and proper for carrying into execution the foregoing Powers.”

Third, in an odd addition to a provision that is portrayed by tea partiers as a clarion call for states’ rights, the Tenth Amendment also reiterates, with the phrase “nor prohibited by it to the states,” the fact that our Constitution limits not just the powers of the federal government but also the powers of the states themselves.  Those limits, combined with Article VI of the Constitution, which (1) makes the Constitution and federal law the “supreme law of the land,” and (2) binds state and local officials to an “oath or affirmation” to support the national Constitution, make short work of the tea party’s general claim about the Constitution’s protection of inviolable state sovereignty.

In spite of the clear evidence to the contrary, many tea partiers continue to argue that the Constitution preserves state sovereignty, appealing in some cases to a mistaken view of history.  For example, Governor Perry errs in his book, Fed Up, when he attempts to support this argument by quoting from James Madison in Federalist No. 39, “[e]ach state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act”  (Fed Up, p 23). The quote sounds like support for Perry’s strong states rights position until one realizes that the “voluntary act” Madison is referring to is the ratification of the Constitution itself. As Yale Law Professor Akhil Amar has explained, “[a]lthough states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a ‘more perfect Union’ would itself end each state’s sovereign status” (Amar, America’s Constitution: A Biography, 33).

The reality of our constitutional history is that the Constitution was ratified because of a deep conviction by Americans, including George Washington, Alexander Hamilton and James Madison, that the federal government established by the Articles of Confederation was far too feeble.  The Constitution, in turn, provided vast new powers to the federal government, retained some powers at the state level, and made “We the People” the ultimate sovereign in the American republic.

The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected. However, the tea party’s view of the Tenth Amendment is inconsistent with the text and history of the Constitution. When the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers. The Tenth Amendment does not give tea partiers, or anyone else, a constitutional basis for rolling back critical laws that protect Americans’ health, safety, and retirement security. Tea partiers can love the Tenth Amendment all they want, but only if they read it first.

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