Don't take the 10th Amendment too far

“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.”

Those simple words carry a big wallop upside the federal head, if some in recent headlines are to be believed.

But do they have it right? Is the border between federal and state power such a bright line?

The U.S. Constitution’s Tenth Amendment (added in 1787; ratified in 1791) helps — the key word here is helps — define its concept of federalism (the power-sharing between national and state governments) by confirming an understanding that powers not granted the U.S. are reserved to the states, or the people directly. This “reserved powers” provision describes a relationship, not an exclusive demarcation, confirmed by both the history of its adoption and Supreme Court interpretations.

That the Tenth Amendment was not conceived to be the sole yardstick for measuring federal power was settled by the refusal of both chambers of Congress to insert the word “expressly” before the word “delegated” — unlike the Articles of Confederation, which cast this state-federal relationship a bit differently:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

That’s more strongly worded than the Tenth Amendment we ended up with. The drafters didn’t leave out certain words by accident. In fact, another version (the “Tucker Amendment”) which would have included “expressly” was voted down. Comparing the two documents to emphasize this choice years later, Justice Marshall wrote in the famous case, “McCulloch v. Maryland,” that whether a particular power belongs to one or the other depends on a “fair construction of the whole instrument (Constitution).”

Construing the whole instrument means the Tenth Amendment cannot be understood as a stand-alone. Context thus takes us back to the beginning: Article I, Section 8, Clause 18, a.k.a. the Necessary and Proper Clause. Also called the “elastic clause,” it grants Congress powers which are implied elsewhere in the Constitution, but may not be explicitly stated. These are called the “implied powers” of Congress.

And there’s that emphasis again in the Necessary and Proper Clause at the forefront of the document — the deliberate absence of a bright line. So we have the implied powers of Congress in Article I, and the reserved powers of the states and people in the Tenth Amendment. That should keep things balanced, right? The framers must have thought so — that, or they found the notion of a constant federal-state power struggle itself the essence of democracy.

Each time a state has challenged federal foray into laws not explicitly enumerated elsewhere, such as new taxes, corporations, police powers, labor, counterfeiting, environment, health care, liquor and drugs, the Supreme Court has taken it case by case, and considered more than the Tenth Amendment in its analysis. Especially when it comes to construing law and managing a healthy society, no law — and no constitutional provision — exists in a vacuum.

The genius of the Constitution is its flexible design, its attempt to do anything but create bright lines. These provisions are pliable, attempting to achieve balance in their vagueness, so the brief document stands the test of time, growing along with civilization into the unknowable future.

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Sholeh Patrick, J.D., is a columnist for Hagadone Newspapers and has degrees in international relations and law. Contact her at Sholeh@cdapress.com.