1. The People created the federal government to be their agent for certain enumerated purposes only. The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.

2. The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States. The rest is to be handled by the state governments, or locally, by the people themselves.

3. The Constitution does not include a congressional power to override state laws. It does not give the judicial branch unlimited jurisdiction over all matters. It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

4. If the Congress had been intended to carry out anything they claim would promote the “general welfare,” what would be the point of listing its specific powers in Article I, Section 8, since these would’ve already been covered?

5. James Madison, during the Constitutional ratification process, drafted the “Virginia Plan” to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress. Each one of these proposals was soundly defeated. In fact, Madison made many more attempts to authorize a national veto over state laws, and these were repeatedly defeated as well.

6. The Tenth Amendment was adopted after the Constitutional ratification process to emphasize the fact that the states remained individual and unique sovereignties; that they were empowered in areas that the Constitution did not delegate to the federal government. With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty – and unconstitutional.

7. Tragically, the Tenth Amendment has become almost a nullity at this point in our history, but there are a great many reasons to bring it to the forefront. Most importantly, though, we must keep in mind that the Founders envisioned a loose confederation of states – not a one-size-fits-all solution for everything that could arise. Why? The simple answer lies in the fact that they had just escaped the tyranny of a king who thought he knew best how to govern everything – including local colonies from across an ocean.

8. Governments and political leaders are best held accountable to the will of the people when government is local. Second, the people of a state know what is best for them; they do not need bureaucrats, potentially thousands of miles away, governing their lives. Think about it. If Hitler had ruled just Berlin and Stalin had ruled just Moscow, the whole world might be a different place today.

9. A constitution which does not provide strict limits is just the thing any government would be thrilled to have, for, as Lord Acton once said, “Power tends to corrupt, and absolute power corrupts absolutely.”

10. We agree with historian Kevin Gutzman, who has said that those who would give us a “living” Constitution are actually giving us a dead one, since such a thing is completely unable to protect us against the encroachments of government power.

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Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

45 thoughts on “Tenth Amendment Talking Points

  1. Frantz Herr

    There is a system of checks and balances within the government structure of the United States. The Judicial Branch was established to provide a court in which to review federal legislation for compliance with the Constitution. If the Legislative or Executive Branches are overstepping, why isn’t this being challenged in the Courts? I don’t have a problem with our state passing a resolution on the 10th Amendment, but if there are actual incursions against states rights, why aren’t they being challenged through the Judicial System as the Constitution intended?

    • Frantz – great questions. I’ll ask it again – why isn’t this being challenged in the Courts?

      I’m only assuming here – but if both the legislative and the executive branches are overstepping (and they are doing so significantly), then who’s left to challenge them in court?

      • Deb

        Take the next step – get states to pass LAW with legislation rather than just "resolutions", which are just statements.

    • Because the courts are not doing their job.

      It is already evident that another election will not solve the problem, and it should be obvious that the courts are not following and upholding the constitution.

      The remaining paths are limited. It is the duty of people through the states to exert their natural and constitutional rights before they entiely vanish.

      Jim Fitzgerald

    • Steven G. Poyzer

      Very simply it is because if SCOTUS challenges the the overstepping of the Congress and Executive branches, they themselves will be challenged for judicial activism, and the rewriting/re-interpretation of the original intent of the Constitution. While we are supposed to have three separate but equal branch for the application of checks and balances, what in reality we have is co-conspirators.

  2. Jeff

    Simple answer? The legislative, executive, and judicial branches are all pretty much run by lawyers…

    • B Tracy

      Simple is right – and meaningless. Even if we would accept that the statement is true – they are ALL run by lawyers (obviously true of Supreme Court but not others), what would that have to do with whether or not the overstepping laws are challenged in the courts? Lawyers don't bring lawsuits people do, Lawyers merely represent them in the process. So the question remains why don't the people challenge the over-reaching laws?

  3. Joe

    “7. Tragically, the Tenth Amendment has become almost a nullity at this point in our history,…”

    What is meant by this comment? I am thinking it means that 10A is pretty much being ignored. If so, how can that be? I don’t see how the wording can be any clearer. Is this just another example of ignoring the parts of the Constitution that are inconvenient?

    • Joe, you’re right about the fact that it’s being ignored, on virtually every level of the federal government, too. And yes, it’s written in plain English, and is quite easy to understand – which makes those transgressions against our liberty that much worse.

  4. Jeff Matthews - Houston, TX

    To answer the question as to why it ias not being challenged in the courts:

    It is. Once in a while, but very seldomly, the US Supreme Court will hold that the feds are overstepping their authority with respect to a state’s sovereign powers. However, that is quite rare, as many of the challenges made in decades past were shot-down by earlier holdings by the US Supreme Court that the “Interstate Commerce Clause” of the Constitution was very broad, and if any subject “touched upon” interstate commerce, the feds had authority.

    To hyperbolize just a bit, there were some goofy holdings that I will not go back to research. They were along the lines of “a local yardman mowing your lawn affects interestate commerce because he buys gas for his mowers and that gas crosses state lines to get to him.”

    The question that remains today is, “Is the Interstate Commerce Clause limited in any practical way?” For the most part, legal scholars answer, “No.”

  5. Jeff Matthews - Houston, TX

    Here is an example of a more recent holding by the US Supreme Court that a federal statute violated the Tenth Amendment: In Printz v. US, 521 US 898 (US 1997), in issue was the U.S. Brady Act’s requirement that local law enforcement perform certain background check and notification procedures when a gun dealer gives notice of its intent to sell a handgun to a prospective purchaser. In a nutshell, the US Supreme Court held that the federal government could not commandeer local law enforcement to serve its purpose. In other words, presuming the feds have authority to regulate handguns, if the feds want to regulate them, they must do it themselves. They cannot make the states do their job for them.

  6. Jeff Matthews - Houston, TX

    Here is an example of the breadth of the Interstate Commerce Clause as has been the case with many prior US Supreme Court opinions: In Wickard v. Filburn, 317 US 111 (US 1942), the US Supreme Court upheld a federal law restricting how much wheat a person could grow on his own land. Facing penalties for growing too much wheat on his farm, the farmer challenged the law as a violation of the Tenth Amendment.

    The farmer pointed out that his wheat was grown for his family’s own consumption, plus consumption by his own farm animals. None of the wheat in issue was grown for the purpose of selling on the market, let alone selling in a manner where the wheat would ever cross state lines.

    The US Supreme Court held that it did not matter because when a person grows wheat, it affects interstate commerce because he/she will not need to buy wheat from the wheat growers who introduce their wheat into interstate commerce. The Court does not say it exactly like that, but that is what they are getting at.

    They say the fact that an act stays wholly within a state – and even wholly within one’s own farm – still indirectly affects the interstate market due to supply and demand issues. Of course, this means, in reality, that the feds, according to the Court, had a right to make this farmer limit his production and compel him to go out into the market and buy wheat.

    That’s how broad the Interstate Commerce Clause has been read, and from this case, you can see how virtually unlimited the feds’ power has been interpreted to be. Essentially, with this sort of expansive reasoning, the obvious question remains, “What, practically, is left of the Tenth Amendment?”

    With this case in mind, go back and read the Tenth Amendment and ask yourself that question.

    • Great input on the Commerce Clause issue, Jeff. For those interested in even more on that issue, it’s covered in a nice, easy-to-read package in Napolitano’s book, Constitution in Exile….listed above.

    • So, basically what the SCOTUS said is that by NOT engaging in interstate commerce, Mr. Filburn was engaging in interstate commerce. I guess the paradox was lost on those deep-thinking justices.

  7. Brian McCandliss

    The reason the Tenth Amendment is being ignored, is that the federal government has the final word on it; and Madison specifically stated in his Report on the Virginia Resolutions, that this would subvert the entire Constitution– and that for this reason, there could be no higher tribunal than the individual states, to decide when the Constitution had been breached by federal law. Therefore the states must assert and prove their international sovereignty as free and separate nations, before the Tenth Amendment will mean anything. This is easily proven, since the ringleaders of the “national constitution” crowd have very weak arguments; the chief ringleader is perhaps Prof. Akhil Amar, who claims that the Constitution forms the states into one nation, via their agreement to be bound even by amendments they vote against, since he claims that this is “incompatible with sovereignty.” This is absurd, since it’s perfectly compatible with sovereignty in a federal republic, where all compliance is voluntary.
    In order for the Constitution to mean anything, the US must be a federal republic rather than a national one– and that is exactly what the law and Constitution require. Now it’s just a matter of asserting it, and educating the people that their state is a sovereign nation under the law.

  8. Rubicon

    A "living" constitution is merely a document to be used by those in power, when it suits "their" purposes. Otherwise, its to be ignored & circumvented as an obstacle to the ultimate power grab of those whose politics is totalitarian. The constitution has allowed this nation to deal with all sorts of inequities. It may not have happened overnight, however slowly but surely we have been able to make sure all Americans can enjoy their individual freedoms. I find it incredible that our current president actually thinks the constitution is an oppressive document because it does not contain "wealth redistribution" in it. Imagine, a nation founded on individual freedoms, that promise life, liberty, and equal opportunity, is stuck with a president who does not understand our founders never intended equal "OUTCOMES," just equal opportunities.
    Equal outcomes could be taken to the level of total absurdity. IE: I want a new car every year, a new home every ten years, a million dollars a year to spend as I wish (after taxes), and so much more. So if progressives can demand equal wealth, if they can demand we all live the same & we all benefit the same, then I want it my way, not theirs.

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