- [Kim] Hi, this is Kim from Kahn Academy
and today I'm learning about the 10th Amendment
to the Constitution, the last amendment
in the Bill of Rights.
The Bill of Rights was added in order to calm
some of the fears held by those who felt that
the new, stronger central government under the Constitution
might infringe upon the powers of the states
or on individual liberties.
The 10th amendment was specifically designed
to allay those fears.
It reads, 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 what does this actually mean?
To learn more, I sought out the help of some experts.
Randy Barnett is the Carmack Waterhouse professor
of legal theory at the Georgetown University Law Center
and director of the Georgetown Center for the Constitution.
Robert Schapiro is the Asa Griggs Candler professor of law
and dean of Emory Law School.
So, Professor Barnett, can you tell us a little bit
just about what that means?
It's a little dense.
- [Prof. Barnett] During the ratification debates
there was lots of opposition to the Constitution.
In fact, the Constitution only was ratified after
the proponents of the Constitution,
who called themselves Federalists,
promised that amendments would be made to the Constitution.
Because it was the lack of a Bill of Rights
and other changes that caused people to oppose it.
And so they said they would put a bill of rights on
afterwards and at that point in these ratification
conventions, conventions started proposing amendments
to Congress that accompanied their ratification.
So they ratified it and they said, but here are some
changes we want to see made.
And one of the changes that several states asked for
was wording that was very much like what became
the 10th amendment.
A reaffirmation of the fact that the federal government
was going to be one of limited and enumerated powers.
- [Prof. Schapiro] And the 10th amendment
is an expression of the idea that while there are more
powers given to the central government of the United States
it's still the case that the only power that the central
government, the national government, can exercise
are powers specifically given to it by the Constitution.
So the 10th amendment is an embodiment of the structural
principle that the only powers that the national
government has are those that are delegated to it
in the Constitution.
As opposed to the states who have general powers
within their boundaries.
- [Kim] One of the things that I think we see
in the Bill of Rights is many examples of the framers
responding to particular historical evils
that they had witnessed in England
or in Europe, more generally.
So was there something in particular they had in mind
they were trying to prevent with the 10th amendment?
- [Prof. Schapiro] I think the particular evil
they were concerned with was the concern of a distant,
powerful, centralized government.
That had been the government of King George.
They wanted to make sure that wasn't the government
of President George Washington and the 10th amendment
states that the national government is not an all powerful
body with general authority to do whatever it wants.
It's in line with the structure of the Constitution
which says there are certain powers given to the national
government, there certainly are definite powers
given to them but only some powers.
And that idea of being concerned of a distant, strong
government far away from the people is really what underlies
the principle of the Constitution.
And that's what we see in the 10th amendment,
specifying that the powers not delegated
to the United States by the Constitution
are reserved to the states.
- [Kim] So what would you say is important
about the 10th amendment?
- [Prof. Barnett] It reaffirms that the basic structure
of the Constitution is one of limited and enumerated powers.
How limited, of course, is a matter of debate.
But the fact that they are limited and that all other powers
are reserved to the states respectively or to the people
is now a matter of Constitutional law,
it's a matter of the text.
The other thing that's interesting about the 10th
amendment is that in Congress they added the phrase,
or to the people at the end.
The states did not propose that language.
The states proposed the wording of the 10th amendment
and it just would have stopped where it said
are reserved to the states.
And so that made the ninth amendment less a states' rights
provision than the states had wanted and less
a states' rights provision than people read it today.
So the people have rights.
In fact, nowhere in the Constitution does it say
anyone except individuals or persons have rights.
It doesn't say states have rights.
The 10th amendment is about reserved powers
and those are the powers that the people have
to govern themselves as well as other powers
and what this shows is that the people not only have rights
they also have powers.
Perhaps the most important thing, however, is to note
that these two are separate provisions.
That the Supreme Court has sometimes read the 10th
amendment, or the ninth amendment, as meaning basically
the 10th amendment that the people have reserved powers.
But we know they're different because they are put
in there separately and in fact Madison placed
a much higher premium on the importance of the ninth
amendment as opposed to the 10th.
- [Prof. Schapiro] The 10th amendment and the ninth
amendment really speak to the structure
of the Constitutional system, what it means to have
a Constitution setting up a national government,
The 10th amendment is really a statement of the overall
structure of what we call Federalism.
Certain powers given to the national government
and then powers reserved to the states.
The ninth amendment speaks more to the rights
side of things, that is, we have certain rights
which are set forth in the Bill of Rights.
The first amendment about freedom of speech and religion,
the fourth amendment about protection against unreasonable
searches and seizures, and there was some concern
expressed in the late 1700s that if you specified
those rights, did that somehow mean that the national
government could do whatever else it wanted?
And so the ninth amendment says, the enumeration
of certain rights shall not be construed to deny
or disparage others retained by the people.
So it's in line with the idea that national government
has certain powers but they are limited
because other powers are reserved to the states.
And the power of the national government may also
be limited because there are rights
that are reserved to the people.
- [Kim] How do you think the 10th amendment tells us
that the framers intended the federal government
and the state governments to relate to each other?
- [Prof. Schapiro] The 10th amendment really is
a little more about structure than about specific content.
So I think the 10th amendment embodies the idea
that we should think carefully about what are the powers
given to the national government, understanding that
whatever's given to the national government may take powers
away from the states.
And so the 10th amendment is really a text
that embodies the overall principle of Federalism
that is implicit throughout the United States Constitution.
- [Prof. Barnett] In fact, the 10th amendment
is in some respects kind of a replay of the first sentence
of Article One that says that Congress only has
the powers herein granted.
States have the powers, by contrast, and the 10th
amendment affirms, the states have the powers
that are not granted to the federal government
but are granted to them under state constitutions.
So just as the federal government has the powers it has
under the US Constitution, state governments have the powers
they have under state constitutions and the people
reserve all other powers to themselves.
- [Kim] So how has the 10th amendment been
interpreted by the Supreme Court over time?
I imagine there have been some cases about this
as the federal government has gotten more powerful.
- [Prof. Schapiro] Exactly, so the 10th amendment,
which really is just about the structure of government,
saying some power is given to the national government
and there's a concern about the power
reserved to the states, the understanding of that
has really evolved with the understanding
of the breadth, of the power of the national government.
And what we've seen over the course of history
in the United States is that there's been a broader
understanding of the power of the government
of the United States.
That expansion has really come mainly in two forms.
One is with regard to the government's power to regulate
interstate commerce and the broad interpretation
of the national government's power to regulate commerce.
We saw that particularly in the context of the
great depression when there was viewed to be tremendous
social dislocation, tremendous economic problems
in the United States to the point at which some feared
that the American democracy might collapse.
And the national government then was allowed
to exercise more authority over the economy.
- [Prof. Barnett] The Supreme Court, in the New Deal,
declared the 10th amendment as a truism,
meaning as long as you find a power then you can't
have a 10th amendment objection to that power.
That's right, as a logical matter, except that
if you continue to expand your interpretation
of those powers then you are basically violating
the spirit, if not the letter, of the 10th amendment.
And finally then, during the Rehnquist Court,
until today the Supreme Courts started using
the 10th amendment to enforce the spirit
of the Constitution which preserved the existence
of states even when Congress was claiming powers
that went far beyond those that were originally
mentioned in the Constitution's text.
- [Prof. Schapiro] So, in some cases in the early
20th century you did see the United States Supreme Court
interpreting the 10th amendment to limit, to some extent,
what the national government could do if, say, the issue
were child labor or minimum wage laws, things like that.
A question is, is that really something that the national
government can do?
But in the wake of, we say, the New Deal legislation
that was put forward by Congress in the great depression
of the 1930s and approved by the Supreme Court,
we've seen the Supreme Court take a much narrower
understanding of the 10th amendment.
Or, again, we can really see the 10th amendment
in balance with the power of the national government.
And as we've understood a broader role for the national
government the role reserved to the states has shrunk.
- [Kim] This is fascinating.
So one thing that interests me about this
in terms of US history is the way that later on
the 14th amendment is interpreted to incorporate
the Bill of Rights in to the states.
So how does the 14th amendment's protection
of equal citizenship rights then intersect with the idea
that states have certain individual powers?
- [Prof. Schapiro] So certainly in the wake of the Civil War
we saw the 13th, 14th, and 15th amendments.
The 13th amendment banning slavery,
the 14th amendment guaranteeing rights
of national citizenship and equal protection and due process
and the 15th amendment guaranteeing the right to vote,
all of which expanded the power of the national government
and particularly the 14th amendment and its guarantee
of equal protection of laws and due process of laws
were really new national restrictions on state authority,
a new empowerment of the national government to protect
individuals no matter what state they were.
So since the structure of the 10th amendment
is not about protecting a particular body of power,
it would be natural that as the 14th amendment expands
the role of the national government that there'd be
less for the states to do completely immune
from federal intrusion.
- [Prof. Barnett] The 14th amendment represents
a fundamental change to our system of Federalism.
Precisely because it has a section five in the 14th
amendment which empowers Congress to enforce the provisions
of the previous four sections including section one
which has the citizenship clause and the privileges
or immunities clause and the due process clause
and the equal protection clause.
So Congress is given an enumerated power to protect
individuals from their own state governments violating
their fundamental rights under those section one provisions.
That's a change in our Federalism that is consistent
with the 10th amendment because it's a power
that is delegated to Congress by the Constitution,
by section five of the 14th amendment.
What happened to that, however, immediately after
it was enacted is the Supreme Court decided,
and I think quite consciously in their minds decided,
that this change in our system of Federalism
was objectionable.
In fact it was the product of radical republicans
in Congress and it really needed to be undone.
And so in one of the earliest examples of what I would call
living Constitutionalism, in a series of cases
the Supreme Court cut back on the powers of Congress
to protect individuals from the rights of their citizens
in cases like the Slaughterhouse cases or United
States versus Crookshank, or Plessy versus Ferguson.
These are cases, the civil rights cases are more
in which the Supreme Court actually cut back
on the scope in order to restore the Federalism
that existed prior to the Civil War
that the justices preferred.
- [Prof. Schapiro] I think based on its text
and its interpretation over time we see the 10th
amendment really being a recognition of the Federalist
structure of the United States Constitution,
meaning there will be a national government
and there will be states.
And that has not changed over time.
What has changed over time is an understanding about
the scope of the role of the national government.
How much power the national government needs
either to regulate the national economy
or to protect individual rights.
Certainly the interpretation of the interstate
commerce clause and the enactment of the 14th amendment
have been key elements in expanding the role
of national power.
- [Prof. Barnett] But all of this expansion
of national power is completely consistent with the language
of the 10th amendment which again does not specify
any particular kind of power reserved to the states.
It just recognizes that there will be a national
government and there will be states.
- [Kim] So how have the courts been utilizing
the 10th amendment in recent years?
- [Prof. Barnett] In recent years the courts
have been using the 10th amendment not so much
for what it says but for its spirit.
The idea that it reaffirms the importance of states
in our Constitutional structure.
What's happened since the New Deal is the powers
of Congress under its enumerated powers have been
so broadly or expansively interpreted
that if they were all to be applied to states
they way they are applied to private individuals
and private companies essentially Congress could basically
run all the states using it's commerce power
combined with its necessary and proper clause
power, et cetera.
What the Supreme Court has done in recent years
is said this violates the first principles
of our Constitutional order which says states
are important, the 10th amendment affirms that.
And therefore they've created certain carve out
or special protections for states from these broadly
or expansively read Congressional powers.
None of this is really stemming from the original
meaning of the 10th amendment because what's already
happened is the original meaning of the enumerated powers
has already been exceeded.
But what it's attempting to do is to keep in place
the balance between federal and state powers
that the 10th amendment represented.
But doing so in a way that's basically modern.
It's adding the states to a list of protected entities,
protected from expansive federal power.
- [Kim] So we've learned that the 10th amendment
reaffirms that the federal government of the United States
will be a limited government with enumerated powers.
But as the scope of the federal government has grown
so has debate over the interpretation
of the 10th amendment.
Which actions of the states can the federal government
regulate and which exceed federal power?
To learn more about the 10th amendment visit
the National Constitution Center's interactive
Constitution and Khan Academy's resources
on US government and politics.