Tenth 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.

In McCulloch v. Maryland,1 Chief Justice John Marshall famously adopted a broad interpretation of the Necessary and Proper Clause2 to counter the argument that the federal government lacked power to establish a national bank. The opinion also rejected a Tenth Amendment argument, urged by Luther Martin as counsel for the State of Maryland, that the power to create corporations was reserved by that Amendment to the states.3 Martin noted that the Amendment was added to assuage concerns, expressed by opponents of the Constitution’s ratification, that the document would invade states’ rights.4

Stressing the fact that the Tenth Amendment, unlike the Articles of Confederation, omitted the word “expressly” as a qualification of granted powers, McCulloch concluded that nothing in the Constitution “excludes incidental or implied powers.” 5 The effect of the Tenth Amendment, rather, was to leave the question “whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.” 6

Apart from some tax immunity decisions,7 and a notable mention in the Civil Rights Cases,8 the Tenth Amendment was infrequently invoked by the Court until the early twentieth century.9

Footnotes

1

17 U.S. (4 Wheat.) 316 (1819).

2

See ArtI.S8.C18.3 Necessary and Proper Clause Early Doctrine and McCulloch v. Maryland.

3

McCulloch, 17 U.S. (4 Wheat.) at 372–74 (argument of counsel).

4

Id. at 372.

5

Id. at 406 (opinion of Marshall, C.J.).

6

Id. The Court later relied on this passage of McCulloch to state that “[f]rom the beginning . . . the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” United States v. Darby, 312 U.S. 100, 124 (1941).

7

See infra Amdt10.2.5 Federal Power to Tax and the Tenth Amendment (discussing Collector v. Day, 78 U.S. (11 Wall.) 113 (1871), overruled by Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 486 (1939), and related intergovernmental tax immunity cases).

8

Civil Rights Cases, 109 U.S. 3, 14–15 (1883) (arguing that allowing federal regulation of racial discrimination by private actors via the Fourteenth Amendment “steps into the domain of local jurisprudence” and would be “repugnant to the Tenth Amendment of the Constitution” ). The discussion of state sovereignty in Lane County v. Oregon also indirectly refers to the Tenth Amendment:

[I]n many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved.

Lane Cnty. v. Oregon, 74 U.S. 71, 76 (1868) (Salmon, C.J.); accord Slaughter-House Cases, 83 U.S. 36, 62–63 (1872); Mayor of City of New York v. Miln, 36 U.S. 102, 139 (1837).

9

There are a handful of invocations of the Tenth Amendment in nineteenth century Supreme Court cases not involving taxation. These are usually in dissent or in passing reference. See, e.g., Taylor v. Beckham, 178 U.S. 548, 595 (1900) (Harlan, J., dissenting); Legal Tender Cases, 110 U.S. 421, 466 (1884) (Field, J., dissenting); Ex parte Virginia, 100 U.S. 339, 358 (1879) (Field, J., dissenting); Fong Yue Ting v. United States, 149 U.S. 698, 758 (1893) (Field, J., dissenting); Leisy v. Hardin, 135 U.S. 100, 127 (1890) (Gray, J. dissenting); Veazie Bank v. Fenno, 75 U.S. 533, 550 (1869) (Nelson, J., dissenting); Bank of Augusta v. Earle, 38 U.S. 519, 606 (1839) (McKinley, J. dissenting); Gibbons v. Ogden, 22 U.S. 1, 198 (1824); Thurlow v. Massachusetts, 46 U.S. 504, 587 (1847) (opinion of McLean, J.), overruled by Leisy v. Hardin, 135 U.S. 100 (1890).