by Justin D. Lowry, Georgia Conservative Weekly

The purpose of the 10th Amendment is to define the establishment and division of power between the Federal government and state governments. This amendment also protects these powers from both entities. This amendment was used to define the federal taxing power, federal police power, and federal regulations.

At one time, it was read very simply, if it is not in the constitution, the federal government could not pass it to the states. Through the years, the power of the federal government has expanded through the Supreme Court.

The Founding Fathers established this country on the Compact Theory. This theory states that the federal government is a compact of the states, and that the government was a creation of the states.

This is evident in the Treaty of Paris and the Articles of Confederation. The Treaty of Paris stated that the 13 former colonies were “free sovereign and independent states.” The Articles of Confederation also adopted this idea as the second article clearly states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

When they wrote the Constitution, they included the 10th amendment, which states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” The problem with this statement is that is was too open for implication by our government.

At this time, Congressional power came from Article 6, section 2, The Supremacy Clause. This stated that the federal Constitution is the supreme law of the land and the state judges must abide by this constitution, even if it conflicts with the constitution of the state.

While this country was still young, Congress passed the Alien and Sedition Act. Thomas Jefferson and James Madison believed this to be an overstep of Congressional authority, so they drafted the Kentucky and Virginia Resolution.

They believed that the federal government had no right to exercise powers not specifically delegated to it; should the federal government assume such powers, its acts under them would be void. Thus, it was the right of the states to decide as to the constitutionality of such laws passed by Congress. They utilized the theory of Nullification, which stated that the States were to interpret the Constitution, and any acts they saw unconstitutional were nullified.

The original enemy to the cause of State’s rights and federalism was John Marshall. He was a Supreme Court Justice in the early 1800’s. He handed down two major rulings to cut down State’s Rights. One was McCulloch vs. Maryland.

In this case, he determined that the Constitution grants the federal government implied powers to implement the Constitution’s express powers, as well as that the state’s action may not impede valid constitutional exercises of power by the Federal government. In the other case, Gibbons vs. Ogden, he established that the federal government had the right to regulate interstate commerce by the Commerce Clause.

Chief Justice Marshall’s successor was Roger B. Taney. He established a system of Dual Federalism, where separate but equal branches of government are the best option. Dual federalism is based on the federal and state’s government is split into separate spheres, and is supreme in those spheres. It discusses specifically the role between these two governments.

This theory holds the federal government to certain limitations, these being: the government rules by enumerated power, government has a limited set of constitutional purposes, state and federal government is sovereign within its sphere of operation, and the relationship between the federal and state government is best described as tension instead of cooperation. This system lasted for over a century.

The 16th and 17th amendments both gave great power to the federal government. The 16th amendment allowed the federal government to levy an income tax. The 17th amendment changed the Constitution in which they were no longer appointed by the state legislators, but instead elected by the people. This took away the states ability of direct representation.

Through direct representation, the senators were more apt to protect states rights, and were viewed as the states “ambassador” to the federal government. Interesting fact, the state of Georgia has never ratified the 17th amendment.

President Franklin Roosevelt brought about his New Deal, taking more away from the states. This measure brought about Cooperative Federalism. Cooperative Federalism is where the national and state governments “cooperate” with each other. They cooperate by the federal government telling the states what to do, and the states doing it.

This form of federalism brought about a change in federal aid as well. Funds are distributed through grants, which gives the federal government more power over spending and over the states, as these funds come on a quid pro quo basis.

Now, we have a movement called New Federalism, which was started by Ronald Reagan and his revolution in the 1980s. There are several court cases in the 1990’s, under Chief Justice Rehnquist, that displayed the cause of New Federalism.

The case of United States vs. Lopez decided that the federal government did not have the right, under the Commerce Clause, to regulate firearms in school zones. In the case of United States vs. Morrison, the court decided that victims of gender-motivated crimes could not sue their attackers in federal court.