The Return of The Tenth Amendment?

October 28, 2009

Everywhere I look on the web lately (well, maybe only where I look) I see talk about the Tenth Amendment. Last week President Obama announced that “it will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal” . O.K.  So, he never mentioned the Tenth Amendment, but it certainly shows his respect for State’s Rights, at least when it comes to medical marijuana.

At the same time, conservatives are invoking the Tenth Amendment for the various State Sovereignty movements, National ID opposition, Second Amendment arguments, as well as a host of  other campaigns.  See the Tenth Amendment Center’s web site for more information.

It’s been a while since #10 has gotten this much attention.  The Supreme Court has rarely declared a law unconstitutional for violating the Tenth Amendment  in the last hundred years, with a few notable exceptions (New York v. United States, Printz v. United States).  Historically, this wasn’t always the case.

The Tenth Amendment was ratified on December 15, 1791. It reads as follows:

“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.”

James Madison described its purpose during the ratification debates:  ”Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”

Still, the Tenth amendment was occasionally invoked by the Courts to curtail federal power until about eighty years ago. This was true even for powers expressly granted the federal government by the Constitution.

It remains to be seen whether the tenth has any teeth in this era of greatly expanded federal power.

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