What The Tenth Amendment Really Does

Power flows from a simple premise: if the Constitution doesn’t grant it to Congress and it isn’t taken from the states, it stays with the states or the people. We dig into that promise, unpacking the Tenth Amendment as more than a slogan and showing how it shapes real law, real policy, and real tradeoffs between national goals and local control.

We start with why ratifying conventions demanded the Tenth and how its logic is already embedded in Article I and the Necessary and Proper Clause. From there, we follow the thread through the Reconstruction Amendments, where “No state shall” meets “Congress shall have power to enforce,” creating tailored federal authority to protect due process, equal protection, and civil rights. Along the way, we challenge the myth that the Civil War erased federalism by examining the temporary treatment of Southern states as territories and the constitutional limits that still applied.

Then we turn to the modern hinge: taxing and spending for the general welfare. Madison read it narrowly, as a tool to execute other enumerated powers. Hamilton saw a freestanding power, constrained in purpose but not tethered to specific clauses. That disagreement still drives the policy world you live in. Conditional grants, incentives, and the line between inducement and coercion decide whether Washington shapes state choices or merely supports them. We also revisit United States v. Darby and the “truism” controversy to clarify how structure, not slogans, defines federal limits.

By the end, you’ll see why the Tenth Amendment remains a living guardrail for health, safety, welfare, and morals at the state level, even as Congress enforces national commitments through properly granted powers and carefully bounded spending. If you care about who decides on education, public health, infrastructure, or civil rights enforcement, this conversation gives you the framework to evaluate claims and spot overreach. Subscribe, share with a friend who loves constitutional puzzles, and tell us: where should the line between federal ambition and state autonomy be drawn?

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Chapters

• 0:00 Setting The Stage: The Tenth
• 1:42 What The Text Reserves To States
• 3:21 Enumerated Powers And Necessary And Proper
• 5:01 Police Powers Versus Federal Limits
• 6:57 Reconstruction Amendments And New Federal Powers
• 9:39 Civil War, Territories, And Federalism Logic
• 12:08 Darby, “Truism,” And Federalism Debates

Transcript

SPEAKER_00: 0:46

Welcome back to the Civic Senior Podcast. Today we're talking about the 10th Amendment. And if you haven't listened to the Ninth Amendment podcast, this is the one right before this, highly suggested. Dr. Beienberg is back. Dr. Beyenberg, how does the 10th Amendment reserve power to the states?

unknown: 1:04

Yeah.

SPEAKER_01: 1:04

So the 10th Amendment, and we've talked a little bit because it's in some sense core to federalism. So I would also, in addition to the Ninth Amendment one you called out, there was an earlier podcast talking about federalism in general and what it's supposed to do in protecting states, as well as a section, a particular one on Federalist 39. So I would just also direct your attention both to those. But I want to focus on some different parts for this section. So the 10th Amendment was by far the most requested provision by the ratifying conventions. And the 10th Amendment effectively says that the powers that are not given to Congress by the Constitution, as in one of the enumerated powers, mostly Article 1, Section 8, but a few other places, or that are basically prohibited to the states. So Article 1, Section 10. State, you can't do this, this, this, this, this. But effectively, unless Congress has been given a power or a state has been told they can't do this, they still basically get to regulate this and deal with this themselves. And so the defenders of the Constitution were saying, look, this is already a fundamentally limited federal government. Skeptics of the Constitution calm down and sign it. They argued again, I think, defensively. The most natural reading of Article 1, Section 1 is in fact basically the logic of the 10th Amendment. All legislative powers herein granted, right, go to Congress. It doesn't say all legislative powers, it's only those that are granted here. So that's seemingly kind of the logic of the 10th Amendment. Similarly, the necessary and proper clause, we talked about that as well in an earlier session, right? The discussion of that very clearly indicates that it's only going to let Congress do the implementation work of an enumerated power. It's promised repeatedly in Federals 39 and Federals 45. So the critics of the Constitution say, you've already, by your own recognition, you're saying this is basically already in here. And we want to believe that. So it's not costing us, costing you anything to spot us that. And originally the skeptics of the Constitution, they don't want to do the bill, or excuse me, the defenders of the Constitution don't want to do a bill of rights, but they realize pretty quickly this especially is an easy gift. We keep telling them this is basically already in the constitution. It's the most natural reading. It's already implicit in it. So fine. And so again, this is one, in fact, some of the ratifying conventions, this is basically only thing they ask for. We talk about them wanting a bill of rights, but really this more than speech or jury is what they want. A 10th Amendment is the most, something like the Ninth Amendment is the next most. And then trial by jury in various individual rights. So it's dealing with a very specific request, which comes out of the basic pitch that the uh defenders of the Constitution are making. So what does that mean in practice? Well, the idea in constitutional law that we keep coming back to is that the states are presumed to have sovereignty over health, welfare, safety, and morals, what Conlaw calls uh the police powers, versus the federal government is fundamentally one of limited and enumerated powers. And so this the state constitutions, again, they don't have anything like this. They have the opposite sort of assumption here. And so this is part of why the way that the reconstruction amendments are written are basically always two parts. There's a restriction on the states in like part one or two, and then a Congress shall have power to enforce this by necessary by appropriate legislation. And so what that's doing is reflecting again the logic of the 10th Amendment, which is if you say, for example, in the 14th Amendment, no state shall deprive anyone of due process or equal protection or the privileges or immunities right, that is a restriction on the states consistent with the part of the 10th Amendment that says we can put constraints on the states and those restrict the states' power. But then there's the second part, which is Congress shall have the authority to implement that by appropriate legislation. So that is to say we're creating a new enumerated power for Congress to implement the prohibition on slavery, the guarantee of privileges and immunities and equal protection, the prohibition against racially discriminatory suffrage in the sort of then obsolete section two of the 14th Amendment, which gets replaced by the 15th Amendment. So those are basically all structured in a way to reflect that. And this is also part of the way that reconstruction itself operates. There's this narrative that we sometimes have, and we'll talk more about this one that the Civil War is big government Republican Party that is the nationalist party against the states-right Southern Party. So the Civil War is a federalism fight. But that doesn't really make sense if you look at the fallout when they're debating Reconstruction, because the Republicans in Congress want to rebuild the South, but this causes a problem. There is no enumerated power to rebuild the South as a general rule. Like there's no, like we can do whatever we want here. And the Reconstruction Republicans spend a lot of time coming up with, they have funny sounding names, but theories that basically will explain how they can regulate the South without expanding federal power in the North or the West. Because they remain very committed to this idea of the 10th Amendment. And I won't go into all the details on that, but basically, they increasingly come to say the southern states can we can treat them as territories now, whether secession was illegal or legal, but like they're even somewhat agnostic on that question. But by shooting at us, starting a war, fighting with us, asking other countries to basically recognize them as a sovereign power, they no longer have the protection of the 10th Amendment. They are territories, just like, for example, the Mexican session that's given over after the Mexican-American War, right? So Congress is restricted insofar as they can't screw with the Bill of Rights in one of those territories, but they can govern it directly like they could Washington, D.C., which they have an enumerated power for. And so, but none of those arguments make any sense if you think that the Civil War is just the national government won and therefore we can do whatever we want, and federalism is gone. No, these people still care deeply about, they care deeply uh about the 10th Amendment. So that's at its core what the idea of reserving power is uh is supposed to do. This case, this the 10th Amendment gets sort of dismissed as a truism. There's an opinion by uh Justice Harlan Stone in a case called Darby versus United States, which is an interpretation of the Commerce Clause. So I'm going to spare the Commerce Clause discussion for later. But he says effectively it's a truism, which he gets hammered for for saying Stone is getting rid of federalism. Stone may be getting rid of federalism because of the way he treats the Commerce Clause, but that argument is basically true, which is if the 10th Amendment was in there or not really doesn't matter, insofar as the original logic of the Constitution very clearly holds that Congress only has limited and enumerated powers, the states retain all the rest of them that have been constrained. So this is a carryover with some modification from the Articles of Confederation, but something that pretty much all the ratifying conventions need to be assured of, or they won't sign the Constitution.

SPEAKER_00: 8:34

So, Dr. Bidenberg, what have been some ways that the 10th Amendment has been utilized that might have been controversial throughout history?

SPEAKER_01: 8:42

Right. So the the in terms of an explicit invocation of the 10th Amendment, I think it's better to think of them more as sort of people citing the background principles behind it. So one dilemma that pops up really early is the you know the power of the bank. And I don't want to go into the whole bank thing because there's multiple podcasts we'll do on just that one. But those are arguments very early on at the founding about are these powers actually granted to Congress? And particularly the one that I think is easy to miss and where this gets really complicated is the Congress's power to tax and spend. And how that interacts with the Tenth Amendment becomes controversial early on. So originally there's language akin to the ability to tax and spend for the general welfare in the Articles of Confederation. So Madison, when they're pitching the Federalist papers, says, look, this just does the same thing. This just means we can tax and spend for the other enumerated powers. So that the general welfare clause, the spending power, whatever you want to call it, is not a freestanding power, but is basically the almost financial part of the necessary and proper clause. After the Constitution is ratified, particularly Hamilton argues, no, this is a freestanding power. It's its own enumerated power. Congress can tax and spend effectively for whatever it wants. There have been some Hamilton scholars that have said it's a little more nuanced than that. But ultimately, this is a debate about is taxing and spending an enumerated power, or is it effectively an implementation, which really implicates all these 10th Amendment questions because if the federal government can tax and spend, and we'll and I will talk about this, I know in the next session, that the federal government can tax and spend for whatever it wants, that massively expands the scope of federal authority because it can create incentives or it can sort of induce regulation or create incentives that nudge things, uh nudge things along. So that becomes one of the really early fights about the 10th Amendment, effectively, is is the taxing and spending power a corollary of the other enumerated powers, or is it its own freestanding power? And the 10th, because they have to answer this 10th Amendment question. So there's lots of other circumstances where the 10th Amendment has been controversial. And I know this one's running long, so we'll hold and pick up some of those in another one.

SPEAKER_00: 11:06

Yes. So stay tuned for part two. We're going to get a little bit more into the implementation of the 10th Amendment. Dr. Beinberg, thank you.