by David Bernstein,

Doug Kendall of the Constitutional Accountability Center writes: “The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected…. [But w]hen the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers.”

Kendall is correct. Anyone, tea partier or not, who claims that the states retain full “sovereignty” after 1789 doesn’t know what he is talking about.

Kendall’s next sentence, however, doesn’t follow at all: “The Tenth Amendment does not give tea partiers, or anyone else, a constitutional basis for rolling back critical laws that protect Americans’ health, safety, and retirement security.”

Through the New Deal period, it was accepted that the states did retain an important element of sovereign power inherited from the British Parliament, the “police power.” The scope of the police power was subject to much debate, but it was typically thought to at least conclude the power to protect and promote state citizen’s health, safety, and morals. Progressive types argued that promoting the public’s “welfare” was also part of the police power.

Meanwhile, the Commerce Clause provided the federal government with the power to regulate commerce among the states. The scope of this power was also disputed, but there was a consensus that the Clause could not have provided the federal government with a “general police power,” because the states (and “the people”) never delegated, and would not have delegated, that aspect of sovereign power to the federal government. And then the Tenth Amendment reminds us that “the powers not delegated to the United States by the Constitution” remain with the states.

If the states HAD delegated the general police power to the Federal Government, then the liberty of contract cases of the pre-New Deal period would have had far more extreme outcomes. The reason that most forms of novel (and not so novel) state and local regulation were upheld before the New Deal period was because courts found that even if these laws interfered with liberty of contract, they were with the states’ sovereign police powers.

Well, you may ask, why can’t both the federal and state governments have a sovereign police power? It just can’t be, given the nature of sovereignty. The federal and state governments can have overlapping powers, but they can’t have overlapping sovereignties.

In short, then, the Tenth Amendment can, and historically has been, used as an argument to “roll back” federal health and safety laws. Whatever the scope of the Commerce Clause, it can’t be the equivalent of a general police power, and the Tenth Amendment is part of the reason why. But since the New Deal period, most liberal jurists have adopted theories of the Commerce Clause that put no practical limits on federal regulatory power, and therefore do give the federal government the equivalent of a police power. [Just for example, in the Lopez case, the majority challenged Justice Breyer, who dissented, to come up with a single example of a federal law that would be unconstitutional under his interpretation of the Commerce Clause. Breyer demurred, most likely because there is no such law.]

Folks like Kendall simply don’t take the understanding of state-federal relations that prevailed for over 150 years seriously, as witnessed by the fact that he used the precise example–health and safety laws–that would most clearly undermine his point. Of course, Kendall is free to argue that the whole notion of police powers, state sovereignty, and whatnot is undermined by the last seventy years of American history, and it’s certainly a legitimate argument. But that’s a far cry from saying that the counterargument is somehow crazy, irresponsible, or ahistorical.

UPDATE: It occurs to me that one possible reading of Kendall is that he meant only that the Tenth Amendment, by itself, can’t be used to challenge federal health and safety laws, as some tea partiers seem to believe based on incorrect notions of state sovereignty. If that’s what he meant, then I agree with him, at least outside the context of legislation that operates directly on the states as such.

NOTE: This article originally appeared on and is republished here with permission from the author.


David E. Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. He was a Visiting Professor at Georgetown University Law Center for Spring 2003 semester, at the University of Michigan School of Law for the 2005-06 academic year, and at Brooklyn Law School in Fall 2006.

Professor Bernstein is also an expert on the “Lochner era” of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

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