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Our latest constitutional debate: What’s the 10th Amendment mean?

Michele Bachmann, Tim Pawlenty and others suggest that health care bills in Congress may be unconstitutional. The argument from these so-called “Tenthers” derives from the Constitution’s 10th Amendment. Do they have a point?

"Signing of the Constitution" by Howard Chandler Christy
“Signing of the Constitution” by Howard Chandler Christy

You’ve heard some talk — from Michele Bachmann and Tim Pawlenty among others — that the health care bills making their way through Congress may be unconstitutional. Pawlenty kinda took his back. Bachmann won’t explain hers, at least not to me. (I have renewed my request to Bachmann’s spokester for an explanation of Bachmann’s constitutional objections to the health care plan.)

But in both cases, the argument derived from the 10th Amendment to the Constitution, which states that all powers not delegated to the federal government are reserved to the states and to the people.

The 10th, which has not been a major litigation-producing provision of the sacred charter over recent years, is being raised a lot by small-government conservatives. People who take this view are being referred to as “Tenthers,” but I gather this is a term designed by their critics.

So here’s a quick overview of the amendment’s text, history, the recent arguments and contemporary case law.

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How we got the 10th Amendment
The framers of the Constitution were, for the time in which they operated, advocates of a strong federal government. Madison, Hamilton, Franklin, George Washington and the rest of the guys (not Thomas Jefferson, who wasn’t at the Constitutional Convention and who was generally not an advocate of a strong federal government) gave the new national government that they created as much power as they thought they could get passed in a country that, they understood, feared concentration of power.

Some of them wanted much more federal power. Alexander Hamilton, I kid you not, wanted the president to have power of appointment over the governors of the states (he proposed it at the Constitutional Convention). James Madison, the single most influential player in the creation of the Constitution, felt strongly that Congress should have veto power over laws enacted by state legislatures. These are inconvenient facts for those modern conservatives who assert, based on selective use of evidence, that the framers would be horrified by the leviathan that Washington has become.

James Madison
Portrait by John Vanderlyn
James Madison

At the end of the convention, two of the most states-rights oriented delegates  (George Mason of Virginia and Elbridge Gerry of Massachusetts,  if you must know) suggested that a list of guarantees be added to the Constitution of things that the national government couldn’t do (regulate speech, press, religion, force people to quarter soldiers in their homes, that kind of thing).

Madison and others argued that if wasn’t necessary to say what the new government couldn’t do, since it could do only what the document said it could do.  Here’s how Hamilton, in the subsequent “Federalist Papers” essays on behalf of ratification of the Constitution, put the case:

“Why declare that things shall not be done which there is no power to do?”

The idea attracted little support among the other framers. Mason and Gerry couldn’t carry even their own state delegations for the idea. Their proposal was rejected 10 states to 0, and became a major reason that Mason and Gerry refused to sign the final draft of the Constitution that was circulated to the states for ratification.

More famous founding fathers weigh in
During the ratification battles that followed, the lack of such a statement became one of the chief arguments against ratification. Kind of like the health care debate of today, opponents of the Constitution — most notably the famed Patrick Henry of Virginia — portrayed it as a roadmap for big federal government takeover of every aspect of national life.

Patrick Henry, who really wanted to defeat the entire Constitution for several reasons, suggested that if Virginia wanted to ratify the draft, it should do so only provisionally, on condition that a new convention be assembled to provide a proper set of guarantees for the rights of states and individuals.

Patrick Henry
George Bagby Matthews
Patrick Henry

Madison, one of the chief strategists on behalf of ratification, recognized that the whole project could be brought down if various states ratified conditionally. So he cut a deal with key players in a few states. If they would support ratification without formally attaching conditions (which would have the effect of nullifying the ratification), he would promise a bill of rights as amendments to the Constitution, to be enacted by the first Congress.

Madison’s deal worked, and he kept his end of the bargain. As the leading member of the first House of Representatives, he pushed through a list of amendments (that he had previously argued, and probably still believed, were unnecessary.) Ten of them were eventually ratified by the states and became the portion of the Constitution that we unofficially call the Bill of Rights. You have an idea of some of the things covered (or if you don’t, you can plead the Fifth). But probably one of the lesser known (until it has recently become a favorite of small-government conservatives) is Amendment 10, which states:

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“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 there it is. As you can see, it’s sort of a summary of the argument that Madison, Hamilton had been making about why no such amendments were necessary. The Supreme Court actually said in a 1931 decision that the 10th Amendment was a “truism” that “”added nothing to the [Constitution] as originally ratified.” (In other words, the court agreed with Hamilton/Madison that, with or without the 10th, the federal government had only those powers delegated to it by the Constitution).

Alexander Hamilton
Portrait by John Trumbull
Alexander Hamilton

But while the application of the 10th to actual questions that might arise would become complicated, you can see why small government (especially small federal government) conservatives have special feelings for the 10th. It says that the federal government has no powers other than those delegated to it by the Constitution. Which means we have had two centuries plus to consider what powers are delegated to the federal government.

The historical review up to now has relied on my own previous work on the origins of the Constitution. For the subsequent history of the 10th, I turned to Professor Suzanna Sherry, now of the Vanderbilt University but who, in previous work at the University of Minnesota, was my go-to expert on Constitution questions.

That pesky commerce clause
The question of what powers the federal government possesses has been based much less on the Supreme Court’s reading of the 10th Amendment than on its reading of the commerce clause.

Among Congress’ specifically enumerated powers in Article I, Section 8, is the power:

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

If a federal action is properly taken within Congress’ interstate commerce power, then it does not violate the 10th Amendment.

For the first century and more of constitutional interpretation, federal involvement in the domestic economy grew, but the question of what Congress could do in economic matters was a moving target.

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In the early decades of the 20th Century, a conservative majority on the Supreme Court interpreted the commerce clause narrowly, much as today’s small government conservatives would advocate. The court struck down the first federal minimum wage and hour laws, child labor laws, agricultural relief laws and several of the major early elements of President Franklin D. Roosevelt’s ambitious and unprecedented efforts to mitigate the effects of the Great Depression. The Supreme Court felt these laws stretched Congress’ interstate commerce powers too far.

The court-packing plan
The key moment in the recent history of this question occurred when Roosevelt was reelected, by a landslide and with a huge Democratic majority in Congress, and pledged to the same New Deal approach that the court had been blocking.  

Roosevelt suggested (this was actually introduced as legislation but never came to a vote) that some of the older justices were having trouble keeping up with the pace of work and it might be a good idea to expand the size of the court when there were too many elderly justices.

Franklin Roosevelt
Photo by Elias Goldensky
Franklin Roosevelt

(You may be surprised to learn that the size of the Supreme Court is not specified in the Constitution. It has fluctuated over history and Congress would have the authority to increase or decrease it, although it has been at nine justice for more than a century.)

Notwithstanding FDR’s touching concern for the workload of the justices who had been striking down his program, the effect of a massive expansion of the court would a massive expansion of pro-New Deal justices. Roosevelt was denounced for his power grab, but, whether this was a coincidence or not, a minimum wage law that was on appeal to the Supreme Court was approved by a 5-4 ruling, with one of the conservative justices deciding that it was a constitutional use of the power to regulate interstate commerce (and that, therefore, was not a 10th Amendment violating overreach of federal power).

Since that breakthrough, federal power has extended into many areas of the economy might not have been approved by that pre-new Deal court. The commerce clause has been interpreted to authorize many laws whose real purpose was not truly to regulate commerce between the states but for which it was possible to point out some way in which the effect of the law would or could affect commerce.

For example, the Supreme Court struck down California’s attempt to legalize marijuana for medical uses and upheld the federal government’s right to outlaw marijuana nationally (even though the California law affected marijuana that would be cultivated and consumed in California and therefore would not directly be part of interstate commerce). The logic was that legalizing marijuana in one state would effect the national market for marijuana and therefore federal preemption of a state’s right to decide what drugs are legal within that state was permissible as a regulation of interstate commerce.

Clarence Thomas
Clarence Thomas

Justice Clarence Thomas, who dissented on that one, wrote that if Congress can use it’s interstate commerce powers to regulate a commodity that crossed no state lines “then it can regulate virtually anything — and the federal Government is no longer one of limited and enumerated powers.” That lonely Thomas dissent might be an anthem for the Bachmannians who believe that an important constitutional principle has been improperly interpreted out of the Constitution.

The 10th since the New Deal
Since that 1937 reversal by the Supreme Court (which has long gone under the cute moniker “the switch in time that saved nine”), the 10th Amendment has seldom been upheld as a limitation as the power of the federal government.

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Sherry said there were really only two cases of any consequence in which a 10th Amendment challenge prevailed. In one, New York vs. the United States (1992), involved federal incentives amounting to compelling the New York Legislature to enact laws that the feds preferred for the handling of waste from nuclear power plans. In the other, Printz vs. the United States (1997) , the Supremes struck down certainn portions Brady Handgun Violence Prevention Act because the act required local law enforcement officials to conduct background checks when someone tried to buy a handgun. The key was not the gun rights issues (and most of the act remains in place), but the fact that the feds were treating state and local officials as arms of the federal government. The key word, Sherry said, is “commandeer.” The current reading of the 10th Amendment is that it bars the federal government from “commandeering” either the state legislature (forcing it to enact particular laws) or the state/local executive branches (forcing its officials to enforce policy).

“Essentially, the Supreme Court is saying that Congress cannot tell state and local officials how to do their jobs,” Sherry said.

But even that application of the 10th amendment is offset by the many ways that the feds have found to provide financial incentives to encourage the states to implement what the feds think should be national policy, even in areas that are clearly within the states’ jurisdiction.

For example, Sherry said, setting the legally drinking age is clearly a state power. But the Congress did pass a law that said that states that don’t set the legal drinking age at at least 21 years would lose some of their federal highway funds. The court has upheld this kind of incentivizing (bribery? extortion?) if there is any plausible connection between the bribe and the state conduct that the feds are trying to influence. (Those under 21-year-old inebriates might decide to drive on federal highways.)

The modern reading of the 10th Amendment is not one of those issues that separate the liberal and conservative wings of the current court, Sherry said. With the possible exception of Thomas on some aspects of 10th Amendment jurisprudence, the rest of the court seems to have accepted that only by “commandeering” state officials can the Congress overstep its 10th Amendment boundaries.

To loop back to where we started
Sherry said that no 10 Amendment challenge to the health care bills currently before Congress would have any success in court. The key is not the 10th Amendment, but the commerce clause. If someone could establish that health care did not have much a connection to commerce, that would be different. But things that affect the cost of health care are clearly part of commerce. “I can not imagine an argument that health care regulation that is designed to reduce health care costs or provide health care for those who don’t have it, would be beyond the commerce clause” Sherry said.

If it is covered by the commerce clause, then it is within Congress’ power to regulate and doesn’t present a close or interesting 10th Amendment question.

Having reviewed the history and precedents, I can understand how contemporary conservatives might feel that a basic promise, made at the time of the framing and ratification of the Constitution, has been made to disappear. But given the power of precedent and powerful weaves of history that have expanded the federal government’s role in modern U.S. society, the 10th Amendment movement would have a long long way to go to have any impact on this debate on that basis.