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The Tenth Amendment is 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.”
Unlike the other provisions of the Bill of Rights, this amendment focuses on
power rather than rights. The courts have generally read the Tenth Amendment as merely stating, as Chief Justice Harlan
Stone put it, a “truism that all is retained which has not been surrendered.”
United States v. Darby Lumber , 312 U.S. 100 (1941). In other words, rather than limiting the power of the federal government in any meaningful way, it simply restates what is made obvious elsewhere in the Constitution: the federal government has both enumerated and implied powers, but where the federal government does not (or chooses not to) exercise power, the states may do so.
At times, politicians and state governments have argued that the Tenth Amendment means states can engage in
interposition or
nullification by blocking federal government laws and actions they deem to exceed the constitutional powers of the national government. But the courts have rarely been sympathetic to these arguments, except when the federal government appears to be directly requiring state and local officials to do something. For example, in 1997 the Supreme Court struck down part of a federal law that required state and local law enforcement to participate in conducting background checks for prospective gun purchasers, while in 2012 the court ruled that the government could not compel states to participate in expanding the joint state-federal Medicaid program by taking away all their existing Medicaid funding if they refused to do so.
Printz v. United States , 521 U.S. 898 (1997);
National Federation of Independent Business v. Sebelius , 567 U.S. __ (2012).
However, the Tenth Amendment also allows states to guarantee rights and liberties more fully or extensively than the federal government does, or to include additional rights. For example, many state constitutions guarantee the right to a free public education, several states give victims of crimes certain rights, and eighteen states include the right to hunt game and/or fish.
See Douglas Shinkle, “State Constitutional Right to Hunt and Fish.” National Conference of State Legislatures, November 9, 2015. http://www.ncsl.org/research/environment-and-natural-resources/state-constitutional-right-to-hunt-and-fish.aspx (March 4, 2016). A number of state constitutions explicitly guarantee equal rights for men and women. Some permitted women to vote before that right was expanded to all women with the Nineteenth Amendment in 1920, and people aged 18–20 could vote in a few states before the Twenty-Sixth Amendment came into force in 1971. As we will see below, several states also explicitly recognize a right to privacy. State courts at times have interpreted state constitutional provisions to include broader protections for basic liberties than their federal counterparts. For example, although in general people do not have the right to free speech and assembly on private property owned by others without their permission, California’s constitutional protection of freedom of expression was extended to portions of some privately owned shopping centers by the state’s supreme court (
[link] ).
Pruneyard Shopping Center v. Robins , 447 U.S. 74 (1980).
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