States’ Rights

Reverse All Violations of States’ Rights

The authority of the 10th Amendment can be best described in the following statement -

Roger Pilon, Ph.D., J.D. - Senior Fellow and Director for Constitutional Studies of the Cato Institute stated before the Subcommittee on Human Resources and Intergovernmental Relations Committee on Government Reform and Oversight of the United States House of Representatives on July 20, 1995 the following:

The Tenth Amendment states: “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.” By its terms the amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.

That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution (”All legislative Powers herein granted “) and in the Tenth Amendment’s reference to powers “not delegated,” “prohibited”, and “reserved.”

Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally–through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim. What the Tenth Amendment says, in a nutshell, is this: if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.(2)

At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state “partnerships,” block grants, “swapping,” “turnbacks,” or any of the other modern concepts of intergovernmental governance. It is about legitimacy. As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, “deriving their just powers from the consent of the governed.”(3) Without that consent, as manifest in the Constitution, power is simply not there.