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Amendment X: Rights Retained by the States

“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.”

Ours is a federal system of government, with power divided among local, state and national entities. This doctrine, known as “federalism,” describes the unique relationship that each state has with the national or federal government. As a function of this system, independent state and local governments retain significant decision-making power for the people of their states. As James Madison asserted: “The powers reserved to the several states will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people, and the internal order, improvement, and prosperity of the state.” The Tenth Amendment reminds the national government that the people and the states retain every authority that is not otherwise mentioned in the Constitution.

These state governments are also subject to federal interests composed of values and goals shared by citizens of every state within the United States. An example of federalism in practice is illustrated by federal and state flags. While each state government building flies a red, white and blue flag to symbolize its affiliation with the federal government, each state also has its own unique flag to symbolize the characteristics unique to that state which make it different from the 49 other states in the Union.

Because the Tenth Amendment only applies to the federal government, it serves as a reminder that federal power is limited and that laws unique to a particular state, as unusual as they might be, may only be struck down in favor of a prevailing federal interest and under extreme circumstances. An example of a prevailing federal interest is found in the 1954 case Brown v. Board of Education. Although Kansas had a state law that permitted segregated schools, the federal interest in desegregation was so strong that the U.S. Supreme Court found this state law to be unconstitutional.


The Tenth Amendment Today


With few exceptions, the old-fashioned “town hall meeting” has become a thing of the past. And to a certain extent, so is the power given to the states and the people in the Tenth Amendment. Like several other amendments in the Bill of Rights, the Tenth Amendment has practically been rendered moot by the national government and the courts. Indeed, the federal government has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies, the federal government has stripped states of the right to regulate countless issues that would be better governed at the local level.

Issues such as defining marriage and criminalizing flag burning are recent examples of the federal government’s attempts through legislation to regulate issues that are almost purely local in nature. The so-called “hate crime” legislation that the federal government has been proposing over the past few years is yet another example of the federal government’s increased role in the day-to-day lives of Americans. Hate crime legislation defines a hate crime as an act of violence committed against an individual because of the victim’s race, religion, national origin, gender, sexual orientation, gender identity or disability and represents a violation of the Tenth Amendment’s limitations on federal power. Under the U.S. Constitution, there are only three federal crimes: piracy, treason and counterfeiting. All other criminal matters are left to the individual states. Any federal legislation dealing with criminal matters not related to these three issues usurps state authority over criminal law and takes a step toward turning the states into mere administrative units of the federal government.

There has been no evidence that local governments are failing to prosecute the crimes covered under hate crime legislation; thus, the federal government has no justification for claiming a necessity to intervene. Instead of increasing the effectiveness of law enforcement, hate crime laws undermine equal justice under the law by requiring that law enforcement and judicial system officers give priority to investigating and prosecuting hate crimes.

Eventually each state’s driver’s license will have to conform to federal standards in order for its citizens to conduct business or do routine things such as board an airplane. This “REAL ID” program is yet another move toward the centralization of power, impacting the rights of states to regulate themselves. 

We must remember that Congress and the president periodically assume more power than the Constitution grants them. It is up to the people and the states to make sure they obey the law of the land.

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