The Tenth Amendment: The Basis of Federalism

The Sharing of Government Powers

Man holding a study guide to the US Constitution
Immigrants Study US Constitution in Preparation for Citizenship Test. Justin Sullivan / Getty Images

The often overlooked Tenth Amendment to the United States Constitution defines the American version of “federalism,” the system by which the legal powers of governance are divided between the federal government based in Washington, D.C., and the governments of the combined states.

The Tenth Amendment states, in full: “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.”

Three categories of political powers are granted under the Tenth Amendment: expressed or enumerated powers, reserved powers, and concurrent powers.

Expressed or Enumerated Powers

Expressed powers, also called “enumerated” powers, are those powers granted to the U.S. Congress mainly found in Article I, Section 8 of the US Constitution. Examples of the expressed powers include the power to coin and print money, regulate foreign and interstate commerce, declare war, grant patents and copyrights, establish Post Offices, and more.

Reserved Powers

Certain powers not explicitly granted to the federal government in the Constitution are reserved to the states under the Tenth Amendment. Examples of reserved powers include issuing licenses (drivers, hunting, business, marriage, etc.), establishing local governments, conducting elections, providing local police forces, setting smoking and drinking ages, and ratifying amendments to the U.S. Constitution.

Concurrent or Powers

Concurrent powers are those political powers shared by both the federal government and the state governments. The concept of concurrent powers responds to the fact that many actions are necessary to serve the people at both the federal and state levels. Most notably, the power to impose and collect taxes is needed in order to raise money needed to provide police and fire departments, and to maintain highways, parks, and other public facilities.

When Federal and State Powers Conflict

Note that in cases where there is a conflict between a similar state and federal law, the federal law and powers supersede state laws and powers.

A highly visible example of such conflicts of powers is the regulation of marijuana. Even as a growing number of states enact laws legalizing the recreational possession and use of marijuana, the act remains a felony violation of federal drug enforcement laws. In light of the trend toward legalization of both recreational and medicinal uses of marijuana by some states, the U.S. Department of Justice (DOJ) recently issued a set of guidelines clarifying the conditions under which it would and would not enforce federal marijuana laws within those states. However, the DOJ has also ruled the possession or use of marijuana by federal government employees living in any state remains a crime.

Brief History of the Tenth Amendment

The purpose of the Tenth Amendment is very similar to that of a provision in the U.S. Constitution’s predecessor, the Articles of Confederation, which stated:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The framers of the Constitution wrote the Tenth Amendment to help the people understand that powers not specifically granted to the United States by the document were retained by the states or the public.

The framers hoped the Tenth Amendment would allay the people’s fear that the new national government might either try to apply powers not listed in the Constitution or to limit the states’ ability to regulate their own internal affairs as they had in the past.

As James Madison said during the U.S. Senate’s debate on the amendment, “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”

When the Tenth Amendment was introduced on Congress, Madison noted that while those who opposed it considered it superfluous or unnecessary, many states had expressed their eagerness and intent to ratify it. “I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States,” Madison told the Senate.

To the amendment’s critics, Madison added, “Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”

Interestingly, the phrase “… or to the people,” was not a part of the Tenth Amendment as it was originally passed by Senate. Instead, it was added by the Senate clerk before the Bill of Rights was sent to the House or Representatives for its consideration.

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Longley, Robert. "The Tenth Amendment: The Basis of Federalism." ThoughtCo, Nov. 3, 2016, thoughtco.com/tenth-amendment-basis-of-federalism-4109181. Longley, Robert. (2016, November 3). The Tenth Amendment: The Basis of Federalism. Retrieved from https://www.thoughtco.com/tenth-amendment-basis-of-federalism-4109181 Longley, Robert. "The Tenth Amendment: The Basis of Federalism." ThoughtCo. https://www.thoughtco.com/tenth-amendment-basis-of-federalism-4109181 (accessed December 17, 2017).