The Bill of Rights Series
Amendment X: The Federal Government Has Only the Powers It Was Given
Part 10 of a 10-part series examining the Bill of Rights — and the federal record of violating it.
The Tenth Amendment is the closing argument of the Bill of Rights. After nine amendments specifying what the federal government cannot do to individuals, the tenth addresses the question underneath all of them: how much power did the people grant the federal government in the first place?
“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.”
The answer is: only what the Constitution says. Everything else stays with the states or the people.
This was not a new idea in 1791. It was the idea the entire Constitution was built on. The federal government was granted specific, enumerated powers — to regulate commerce, to raise armies, to coin money, to conduct foreign affairs. The Tenth Amendment was included because the Anti-Federalists feared, with some justification, that a national government with ambition and resources would find ways to expand beyond those grants. Madison added the amendment to make the design unmistakable. What was not delegated was not surrendered. It was retained.
How the Expansion Happened
The mechanism for federal expansion has rarely been direct. Congress has not often passed laws saying plainly that it is regulating something the Constitution reserves to the states. It has instead found arguments — increasingly attenuated arguments — for why a particular activity falls within an enumerated power.
The Commerce Clause, which authorizes Congress to regulate commerce among the states, became the primary instrument. Over the course of the twentieth century, courts interpreted it to cover activity that affected interstate commerce, then activity that might affect interstate commerce, then activity that in the aggregate could conceivably affect interstate commerce. By the time that logic had run its course, there was very little human activity Congress could not reach by invoking the clause.
The spending power followed a parallel path. Congress cannot directly order states to adopt particular policies in areas reserved to them. But it can offer federal funds on condition that states comply with federal requirements — and it can make those conditions expansive enough that states have little practical choice but to accept them. The distinction between a condition and a command blurs when the alternative to accepting the condition is losing funding the state has come to depend on.
Neither of these mechanisms is secret. Both have been litigated extensively. The results have been mixed.
Where Courts Have Drawn Lines
Beginning in the 1990s, the Supreme Court pulled back on decades of near-unlimited deference to federal commerce power claims.
United States v. Lopez (1995) struck down the Gun-Free School Zones Act — a federal law criminalizing the possession of a firearm near a school. Congress had not made a finding that this activity affected interstate commerce. The Court held that it did not, and that the federal government does not possess a general police power. Education and local crime are state matters. The Commerce Clause does not convert them into federal ones simply because Congress says so.
United States v. Morrison (2000) applied the same logic to a portion of the Violence Against Women Act. Printz v. United States (1997) established the anti-commandeering doctrine: the federal government may not conscript state executive officers to administer federal programs. New York v. United States (1992) extended that principle to state legislatures. The federal government can set policy. It cannot order the states to implement it for them.
NFIB v. Sebelius (2012) addressed the Affordable Care Act’s Medicaid expansion, which threatened states with the loss of all existing Medicaid funding if they declined to expand the program. The Court held that a condition this coercive — withdrawing funds states had budgeted around for decades — crossed the line from inducement into compulsion. The states were not choosing freely. They were choosing under a financial gun.
Murphy v. NCAA (2018) reaffirmed anti-commandeering in the context of sports gambling, striking down a federal law that effectively prohibited states from authorizing gambling. Congress cannot simply tell states what policies they must maintain.
Each of these decisions restored, in part, what the Tenth Amendment preserved in full: a federal government of limited, enumerated powers, operating alongside states that retain authority over everything else.
What the Cases Did Not Restore
The decisions above drew lines. They did not undo the expansion that had occurred before them.
Federal involvement in education, local law enforcement, family law, and land use did not retreat after Lopez and Morrison. It continued through spending conditions and administrative rulemaking — statutory schemes that tied federal funding to compliance with federal preferences. The pace of expansion has been contested and occasionally reversed at the margins. The direction has not changed.
A government that cannot directly order a result can still fund its way there. The Tenth Amendment limits what Congress can command. It has proven less effective against what Congress can purchase.
Federalism as a Protection for Liberty
The Tenth Amendment is not primarily about states’ rights. It is about the dispersion of power.
Madison argued in Federalist No. 51 that the security of liberty depends on giving each part of government the means to resist encroachment by the others — and that the division between federal and state governments provides an additional check. Multiple centers of power make it harder for any single government to dominate the lives of citizens. A federal government that can regulate everything is a government that can control everything. The states, retaining authority in their reserved domains, provide an alternative — a place where different policies can be tried, where citizens can move if they prefer a different set of rules, and where governmental failure at one level does not automatically become governmental failure at every level.
That is not a sentimental argument for local control. It is a structural argument about where concentrated power leads. The Founders had watched it lead to tyranny. The Tenth Amendment was their answer — not a guarantee that state governments would always be wise or just, but a structural limit on how much power any single government could accumulate.
A government of enumerated powers has to justify what it does by reference to the authority it was granted. A government of general powers justifies what it does by reference to its own judgment about what is necessary. Those are different governments. The Tenth Amendment was written to ensure the United States remained the first kind.
The Series in One Principle
Ten amendments. Ten different protections. One underlying premise.
The federal government was created by the people to perform specific functions. It was not created to manage speech, or disarm citizens, or house soldiers in private homes, or search without cause, or take property without process, or prosecute without a fair trial, or punish without limit, or treat the Bill of Rights as the exhaustive list of the people’s liberties, or expand its authority into every domain not explicitly forbidden to it.
Each amendment in this series addresses one specific way a government without limits would abuse the people it governs. Each one was written because the Founders had either experienced that abuse or studied enough history to know it was coming.
The question is not whether the Founders were right that governments tend to expand their power at the expense of individual liberty. The last two and a half centuries have answered that. The question is what each generation is willing to do about it.
Rights that no one defends become rights that no one has. The Constitution does not enforce itself. It never has. It requires people who understand what it says, why it says it, and what it costs when officials treat it as optional.
That cost is always paid by someone. The only variable is who.
This concludes the Bill of Rights series. Ten amendments, written to prevent ten categories of government abuse. The text has not changed. The abuses it was written to prevent have not stopped. The obligation to hold government to its constitutional limits belongs to every generation that benefits from them — which is every generation.
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