TENTH AMENDMENT

RESERVED POWERS

__________

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.

RESERVED POWERS

Scope and Purpose

''The Tenth Amendment was intended to confirm the understanding
of the people at the time the Constitution was adopted, that powers not
granted to the United States were reserved to the States or to the
people. It added nothing to the instrument as originally ratified.''\1\
''The amendment states but a truism that all is retained which has not
been surrendered. There is nothing in the history of its adoption to
suggest that it was more than declaratory of the relationship between
the national and state governments as it had been established by the
Constitution before the amendment or that its purpose was other than to
allay fears that the new national government might seek to exercise
powers not granted, and that the states might not be able to exercise
fully their reserved powers.''\2\ That this provision was not conceived
to be a yardstick for measuring the powers granted to the Federal
Government or reserved to the States was firmly settled by the refusal
of both Houses of Congress to insert the word ''expressly'' before the
word ''delegated,''\3\ and was confirmed by Madison's remarks in the
course of the debate which took place while the proposed amendment was
pending concerning Hamilton's plan to establish a national bank.
''Interference with the power of the States was no constitutional
criterion of the power of Congress. If the power was not

[[Page 1510]]
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.''\4\ Nevertheless, for approximately a century, from the
death of Marshall until 1937, the Tenth Amendment was frequently invoked
to curtail powers expressly granted to Congress, notably the powers to
regulate commerce, to enforce the Fourteenth Amendment, and to lay and
collect taxes.

\1\United States v. Sprague, 282 U.S. 716, 733 (1931).
\2\United States v. Darby, 312 U.S. 100, 124 (1941). ''While the
Tenth Amendment has been characterized as a 'truism,'' stating merely
that 'all is retained which has not been surrendered,' [citing Darby],
it is not without significance. The Amendment expressly declares the
constitutional policy that Congress may not exercise power in a fashion
that impairs the States' integrity or their ability to function
effectively in a federal system.'' Fry v. United States, 421 U.S. 542,
547 n.7 (1975). This policy was effectuated, at least for a time, in
National League of Cities v. Usery, 426 U.S. 833 (1976).
\3\Annals of Congress 767-68 (1789) (defeated in House 17 to
32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150-51
(1971) (defeated in Senate by unrecorded vote).
\4\2 Annals of Congress 1897 (1791).
---------------------------------------------------------------------------

In McCulloch v. Maryland,\5\ Marshall rejected the proffer of a
Tenth Amendment objection and offered instead an expansive
interpretation of the necessary and proper clause\6\ to counter the
argument. The counsel for the State of Maryland cited fears of opponents
of ratification of the Constitution about the possible swallowing up of
states' rights and referred to the Tenth Amendment to allay these
apprehensions, all in support of his claim that the power to create
corporations was reserved by that Amendment to the States.\7\ Stressing
the fact that the Amendment, unlike the cognate section of the Articles
of Confederation, omitted the word ''expressly'' as a qualification of
granted powers, Marshall declared that its effect 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.''\8\

\5\17 U.S. (4 Wheat.) 316 (1819).
\6\Supra, pp.339-44.
\7\McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819)
(argument of counsel).
\8\Id. at 406. ''From the beginning and for many years the
amendment has been construed as not depriving the national government of