The Reserved Powers of the Tenth Amendment

by Marshall DeRosa,

The Tenth Amendment can best be described as the last visible battlefield of the constitutional struggle between the forces of centralization and those of localism. But just as military advances have made nineteenth-century earthen breastworks mostly obsolete, so, too, have developments in American jurisprudence eviscerated the protective qualities of the Tenth Amendment. Justice Holmes advanced the evisceration of the Tenth Amendment in 1920, when he adjudicated a conflict between a 1916 treaty and a Missouri law. He postulated: “The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved” (Missouri v. Holland, 252 U.S. 416).

According to this Holmesian logic, rather than the Tenth Amendment constraining the expansion of national power, national power feeds off the reserved powers of the States as national developments dictate. In other words, the reserved powers of the States are conditioned within the context of national power. Moreover, because the Tenth Amendment lacks sustainable substantive content, Supreme Court Justices have license to define the States’ reserved powers as their respective ideological proclivities dictate. This jurisprudential fact is most recently manifested inLawrence v. Texas, through which the court majority’s ongoing expansion of privacy rights trumped a portion of Texas’s police powers prerogative.

Professor Killenbeck echoes Justice Holmes’s Tenth Amendment jurisprudence by placing it in the context of the “transformation of the federal government’s role in response to the realities posed by a substantially changed nation. . . .” This leaves begging the question whether “the transformation of the federal government’s role” is a good in itself. And if not, the original purpose of the Tenth Amendment was to thwart that transformation in order to protect the very things that an ever-expanding national government is despoiling, such as government based upon the consent of the governed.

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Categories: Pro Constitution


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