There has always been scant argument among constitutional scholars about which of the amendments in the Bill of Rights is most important. Most of course will answer that it is the First Amendment, guaranteeing freedom of speech, press, assembly, religion and petition for government redress of grievances.
But when it comes to the amendment that has been the most ignored, misinterpreted or abused, few could argue against the 10th Amendment.
It reads: 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.
This amendment, which serves to institutionalize a system of governance known as dual federalism, is the corollary to the few and defined powers assigned to the federal government. It was designed to leave no doubt that powers not specifically granted to the executive, legislative and judicial branches in the Constitution belong to the states or the people.
But as the federal government, most specifically the executive and judicial branches (the president and the courts), have continually expanded their purview and grasped powers far above and beyond those prescribed by the Framers and enumerated in the Constitution, federalism has taken a beating.
Up through the Civil War, the people identified more with their own states than they did with the United States. Citizens of Virginia were more Virginians than they were Americans, and likewise with people in other states. The concept of forfeiting sovereignty to the federal government was largely anathema, and hardly on the radar.
That changed profoundly when Abraham Lincoln became president in 1861. Lincoln aggressively exercised federal authority in attempting to thwart secessionist movements in states that would become a part of the Confederacy. This structure of increased federal control remained in place after that war, and has served to gradually escalate the power of Washington, D.C., and diminish the independent authority exercised by the states.
Defenders of this increasingly unbalanced dual federalism are emboldened by the so-called supremacy clause in Article 6 of the Constitution, which reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.
Politicians tend to be quite selective when it comes to the application of the 10th Amendment, as they are with so many other elements of the Constitution. For the last 60 years or so, opposition to federal power and support for states’ rights was largely concentrated among those attempting to reject racial desegregation in the South. But now we are beginning to witness the reverse. With the federal government weeks away from being controlled entirely by Republicans, more and more Democrats are adopting the states’ rights position on so-called sanctuary cities that provide a safe harbor for illegal immigrants.
The 10th Amendment is also undergoing a serious test on the issue of marijuana. The drug is illegal under federal law, but nine states have legalized it for both recreational use and sale (and several other states have voted to legalize recreational and/or medical use). Federal and state laws will at some point — likely in the near future — need to be reconciled.
Gay marriage was an issue thought by many to be the dominion of individual states but the debate was effectively ended in 2015, when the Supreme Court ruled it a constitutional right for all Americans. With the change of administrations and the Court now likely to be dominated by strict constructionists and originalists in the tradition of the late Justice Antonin Scalia, it is possible that this issue will be revisited in arguments about both dual federalism and the proper role of the federal judiciary.
To be sure, a genuine revival of federalism will hardly happen overnight. It may not be at the forefront of people’s thoughts with the changing of the guard in our nation’s capital, but these issues regarding sanctuary cities, marijuana and gay marriage have, at a minimum, put the proper application of the 10th Amendment back in the discussion for the months and years ahead.
• Timothy E. Donner is founder and president of One Generation Away, a nonprofit organization dedicated to preserving the vision of a free America by applying our founding principles to the issues of today.