- Career Counsel
The Tenth Amendment
by J.C. Watts and J. Harvie Wilkinson III
Former Congressman (R.-Okla.); Chairman, The J.C. Watts Companies
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.
The Tenth Amendment sets forth one of our most cherished rights, and for good reasons. When states and local communities take the lead on policy, the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor.
My experience in Congress has convinced me that empowering state and local government leaders to solve their own problems often leads to better policies. These leaders are closer to those affected by their decisions, and more likely to understand the nuances of their community's particular challenges. Solutions that work well in Boston may be completely inappropriate in Portland. It's hard to keep those distinctions in mind on the Hill.
The greatest virtue of the Tenth Amendment is that it embodies the wisdom of checks and balances. We tend to think of checks and balances in the context of our national executive, legislative, and judicial branches. Yet the tension between federal, state, and local governments is just as important. I value the virtues of the Tenth Amendment, but I have reservations about it as well. Equality of opportunity is an ideal that has become a touchstone of American life, but this amendment has often been at odds with it. There is no more significant example of this than slavery and the consequent legacy of segregation. The Tenth Amendment, often invoked under the banner of "states' rights," was one of the leading pretexts for perpetuating slavery. It isn't fair to equate the Tenth Amendment with slavery — Wisconsin, for example, invoked the amendment to protect abolitionists — but it is fair to say it was the fundamental legal barrier to ending it. Decades after slavery ended, the Supreme Court upheld segregation in Plessy v. Ferguson, one of the most disappointing decisions in our country's history. Louisiana cited the Tenth Amendment in defending its practice of discrimination. To harmonize this with the Fourteenth Amendment's equal protection clause, the Court created the oxymoron of "separate but equal." In truth, there was nothing equal about the separation reinforced by this ruling.
The state of education in our country also demonstrates the Tenth Amendment's strengths and weaknesses. Nothing embodies the idea of equality of opportunity more than education. While a poor education can be overcome by grit and determination, it certainly doesn't promote equal opportunity. Though it's unfair to crudely equate educational quality with educational funding, it's a grave mistake to maintain that funding has no impact. The Tenth Amendment has ensured that education is funded primarily at the state and local levels, with the inequities for our young children so implied.
There are even stronger examples of how the amendment has undercut equality of educational opportunity. The impact of school segregation — enshrined by Plessy until finally being overturned in Brown v. Board of Education — has been terrible. We'll still be wrestling with its tragic legacy for years to come.
Despite these shortcomings, however, on balance the Tenth Amendment's impact on our education system has been positive. I'm convinced that a nationally controlled education system would be a disaster. Not only would it likely lead to an expansive bureaucracy and stifling regulations, but it would also deny us much of the wisdom, innovation, and accountability that often comes from local communities.
Because of education, I nevertheless value the Tenth Amendment. My respect is based on pragmatism, not love. One thing I know for certain is that all levels of government — national, state, and local — are capable of implementing bad or misguided policies.
When checked by safeguards such as the Fourteenth Amendment, and when properly interpreted, the Tenth preserves an important balance. It may ensure that we'll never enjoy the best of government policies, but it's one means of correcting, if not avoiding, the worst. That's a sometimes bitter but ultimately reasonable bargain.
J.C. Watts in 1994 became the first black Republican to be elected from a Southern state to a federal office in 120 years. His most recent book is a memoir, What Color Is a Conservative? (Harper Collins, 2002).
J. HARVIE WILKINSON III
Judge, U.S. Court of Appeals for the Fourth Circuit
Unlike other provisions of the Bill of Rights, the Tenth Amendment does not prescribe a right but establishes a structural principle of reserved powers. The Constitution presupposes a system of dual and concurrent sovereignties. But these sovereign entities operate very differently. The federal government exercises enumerated power, most notably that in Article I, Section 8. The states, by contrast, exercise residual and unenumerated power, fundamentally the basic police power to protect the health, welfare, safety, and morals of the people. And it is the people of each state, as the beneficiaries of the Tenth Amendment's final phrase, who decide in what measure and manner the reserved powers of their state shall be exercised.
The importance of the Tenth Amendment ebbs and flows. It reached a low point in 1941 when Chief Justice Harlan Fiske Stone declared the amendment little more than surplusage. When states have failed to exercise such basic responsibilities as ending racial segregation, federal authority has filled the void, and the appeal of the Tenth Amendment has declined accordingly. The willingness of the Court to breathe life into its words may depend on the public esteem in which state government is held.
During the Rehnquist Court, the Tenth Amendment has experienced something of a revival. In Printz v. United States, the Court invoked the Tenth Amendment to prohibit Congress from commandeering state personnel in the execution of a federal gun control program. But in Reno v. Condon, the Court brushed aside a Tenth Amendment challenge and allowed Congress to impose compliance costs upon the states in furtherance of a federal law aimed at protecting personal information possessed by state motor vehicle departments. Thus Congress appears to have broad latitude in imposing costs incidental to the implementation of federal directives, so long as it does not cross the line and actually tell state officials what to do.
In fact, the much ballyhooed revival of the Tenth Amendment has been something of a marginal development. The Court has actually moved more aggressively under the Eleventh Amendment to limit Congress's ability to subject the states to private suits for monetary damages. And despite predictions to the contrary by then-Justice Rehnquist in dissent in Garcia v. San Antonio Metropolitan Transit Authority, Congress remains free to impose broad-based regulations on the state and local workforce, such as the Fair Labor Standards and Family Medical Leave Acts. Whatever attributes of sovereignty state governments enjoy thus do not include the final and unfettered authority to set rules for their own employees.
The Supreme Court itself has moved to restrict the foremost concern of the Tenth Amendment — the preservation of the state police power. Even in a core area of state concern like domestic relations, the Court struck down as violative of a parent's constitutional rights the application of a Washington state statute allowing grandparents visitation privileges. In Lawrence v. Texas the Court cabined the ability of states to regulate private morality by voiding a Texas statute that criminalized intimate sexual conduct between consenting adults of the same sex. In neither case did the strictures of the Tenth Amendment or the federal system it embodies operate to inhibit the Court's assessment of its own constitutional obligations.
No betting person, then, would believe that the Tenth Amendment is poised for a major revival. This is so for several reasons. Congress's enumerated powers are broad and varied, and the twin revolutions in transportation and communications have made many problems appear more national than regional and local in scope. Twenty-first century America is also a nation conscious of rights and entitlements, and once conferred, rights are not easily withdrawn. The Tenth Amendment coexists in our Constitution with such provisions as the Supremacy Clause, the Necessary and Proper Clause, and the other guarantees of the Bill of Rights. These provisions remind us that the framers set out to do many things — among them, to protect dual sovereignty; establish effective centralized power; and safeguard individual liberty. The last two purposes have served to moderate the structural force of the Tenth Amendment to the point where a major doctrinal revival is unlikely.
Yet the Tenth Amendment serves vital constitutional values. It protects, above all, the possibility of diverse state approaches to the nation's most volatile social problems. And in so doing, it respects regional differences as well. The amendment also holds open the possibilities of political experiment and compromise. And it allows change in America to assume a gradual, evolutionary, and democratic course — one quite different from change achieved through the convulsive stroke of the constitutional pen. The amendment is meant to exist in tension with other constitutional values. It was not intended by the framers to dominate our constitutional landscape. But neither was it placed in our founding document to be forgotten.
J. Harvie Wilkinson III was appointed circuit judge for the U.S. Court of Appeals for the Fourth Circuit by President Reagan in 1984 and served as the circuit's chief judge from 1996 until earlier this year. After earning his JD from the University of Virginia in 1972, he clerked for Supreme Court Justice Lewis F. Powell. His publications include the 1997 book One Nation Indivisible: How Ethnic Separatism Threatens America (Addison-Wesley).