The Tenth Amendment

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J.C. Watts
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.

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Harvard Law School.


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