It’s part the last of of our series on what’s in the Bill of Rights, and so of course we are discussing the Tenth Amendment. It’s the mirror image of the Ninth Amendment:
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.
Remember how the Ninth Amendment said that any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people? As we put it last time, a right has to be explicitly withheld by the Constitution for it to be unlawful. You can see why this was necessary to state: all the rights citizens have can’t be listed in any document; it could get to a thousand pages and still be incomplete. The Ninth Amendment keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution.
In mirror fashion, the Tenth Amendment says the opposite: every power of the federal government is listed in the Constitution. If a power is not “delegated to the United States by the Constitution”, it’s because the U.S. (federal government) does not have that power. The phrase “nor prohibited by it to the States” means powers given expressly to the state governments cannot be assumed by the federal government.
This is clearly meant to keep the bulk of the political powers and civil rights in this country in the hands of local governments (more directly controlled by the people) and individual citizens. It would seem to work perfectly to limit the federal government, if not for the lack of one word: expressly.
Originally, the Tenth Amendment said “The powers not expressly delegated to the United States”. This would mean powers literally described in the Constitution. You can read the Constitution and find them written there. When you take out the qualifier “expressly”, then you allow for interpretation of the Constitution rather than literal reading only. One might interpret the Constitution loosely, extrapolating meaning to grant the federal government powers that are not literally listed in the document.
This means that the Tenth Amendment does not override the “necessary and proper clause” in Article 1, Section 8 of the Constitution, which says that
The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In other words, Congress (the federal government) can make any law it deems necessary to uphold and enforce the Constitution. There is a difference between a right and a law, of course: the NPC gives Congress the power to make any laws it sees fit, but not the right to violate the Constitution. Yet it is laws that more immediately impact individual citizens, and laws can violate our rights. Laws can be fought, but that can take many decades and sometimes many lives, and so the NPC has been held by some to negate the Tenth Amendment.
It’s a slightly hollow note to end our series on the Bill of Rights on, but it’s fitting that our final two posts sum up the fundamental, creational tension between local and federal rights that has shaped, damaged, and ennobled our government, depending on the case you examine.
Now that we have the entire Bill of Rights in hand, how would we sum it up? We see a mix of rights so well-expressed that we take them for granted (freedom of speech, freedom of religion, the right to a trial by jury), rights that have been so loosely interpreted and re-interpreted as to lose all meaning (the right to bear arms, freedom of speech and religion), rights that have taken a beating from the modern world (the right against unreasonable search and seizure, the right to be free from quartering), and rights that are so flat-out violated at all times that it’s hard to believe no one cares (the right to a speedy trial, no excessive bail).
The important thing to remember, perhaps, is that the Bill of Rights is elastic in one sense, demanding re-interpretation as times change, but inelastic in another: it requires an educated public to uphold and enforce it.
The Historic Present 