The Tenth Amendment wasn’t really necessary.

Wow! A pretty shocking statement from somebody who works for the Tenth Amendment Center, huh?

But it’s true.

Why?

Because the Tenth Amendment, along with its partner the Ninth Amendment, don’t really DO anything.  In fact, if those two amendments didn’t exist, the Constitution would remain unchanged. The federal government would still operate with only a few delegated powers, and all other power would still remain with the states and the people.

The Ninth and Tenth Amendments are “rules of construction.” In other words, they tell us how to read the original document. They don’t add anything to the Constitution, and they don’t take anything away. The Ninth and Tenth simply make explicit what was already implicit in the original construction of our founding document.

The enumeration of specific powers in Article 1 Sec. 8 (along with the other delegated powers sprinkled through the rest of the Constitution) naturally preclude the federal government from exercising any other powers. In fact, many in the founding era didn’t see the point of including the Ninth or Tenth Amendments, or even a Bill of Rights, arguing that it was self-evident that enumeration excluded any other authority – Designato unius est exclusio alterius – a legal maxim meaning, “the designation of one is the exclusion of the other.”

But understanding powers naturally tend to expand, many ratifiers insisted on a Bill of Rights. including rules of construction making it clear that the federal government was indeed meant to remain limited to those powers delegated.

Turns out, those folks were pretty perceptive. Even WITH the explicit language of the Ninth and Tenth Amendments, federal power began expanding outside of it proper sphere – almost from day one.

So, when I say the Tenth Amendment wasn’t necessary, I am really talking in a literal sense. It didn’t actually changes the meaning of the original Constitution, it merely enumerated and magnified it. But it does serve a vital purpose.  The fact that the framers insisted on the amendment, and Congress ratified it, gives us a touchstone and reinforces the proper reading of the Constitution.  As Thomas Jefferson pointed out in an 1802 letter to Joseph Priestley, “Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people.  They fix, too, for the people the principles of their political creed.”

That’s what we try to do every day here at the Tenth Amendment Center: rally and recall the people when the federal government illegally operates outside of its delegated powers. The Tenth Amendment fixes in stone the most basic principle underlying our political system.

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.

Mike Maharrey