Commentary by Pete du Pont

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.1

These 28 words of the Tenth Amendment seem to set forth a simple principle: The federal government may exercise the specific powers that are listed in the Constitution, and the States and the people may exercise all remaining powers. Or in the words of James Madison, writing in the Federalist No. 45:

The powers delegated . . . to the federal government are few and defined . . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.2

But it was not to be as James Madison envisioned, for the Tenth Amendment has been so twisted and manipulated by the United States Supreme Court as to render its words meaningless. It has been disparaged, ignored and eviscerated by a federal judiciary going out of its way not to apply it. It is "but a truism,"3 "essentially a tautology,"4 that doesn't require the Supreme Court to fashion any "discrete limitations on the objects of federal authority."5 By systematically bleeding from the Tenth Amendment any real meaning within the boundaries of constitutional law, the Supreme Court has virtually rationalized it out of existence.

In the familiar idiom of baseball, the Tenth Amendment has become to the Constitution what the Chicago Cubs are to the World Series -- of only occasional appearance and little consequence.

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For more than fifty years, since the case of Wickard v. Filburn,6 in which the nation's High Court held that wheat grown for personal use affects interstate commerce (and thus may be regulated by the federal government), the federal judiciary has consistently ruled in favor of expanding the powers of the national government at the expense of the States, even propounding extreme constitutional theories to do so.7 In particular, the Supreme Court has consistently relied on the Commerce Clause to allow Congress to regulate activities within states, as long as Congress could show that the activity had some effect, whether indirect or direct, on interstate commerce.8 Of course, like the butterfly in Brazil whose motion influences, even marginally, weather patterns in Texas, every economic activity, no matter how small, can be said to have some effect on interstate commerce.

Of the ten Amendments constituting the Bill of Rights, none has been so humbled by the Supreme Court as the Tenth. If the federal courts had treated the First Amendment in this fashion, church services might have been limited to alternate Sundays to save oil during the energy crisis, House Speaker Newt Gingrich (R-Ga.) might be granting editorial approval to Newsweek, and Minority Whip David Bonior (D-Mich.) might be deciding which peaceable assemblies in Washington meet the test of truly serving the national interest.

Perhaps it is the structure of the Constitution that has enabled the federal judiciary to run roughshod over the Tenth Amendment. As one commentator has observed, "whatever the Founders' intentions, the rules they wrote are skewed in favor of national power."9

Perhaps the problem is that the Tenth Amendment goes against the grain of conventional liberalism. That liberalism is anchored in the belief that the wisdom of the national government is superior to the provincialism of the state governments, so superior that the power of the federal government must be allowed to reach further into community life than the drafters of the Constitution had contemplated. Thus Gibbons v. Ogden,10 the seminal Commerce Clause case, decided in 1824, has been, to borrow the words of Professor Richard A. Epstein, "misread to support the . . . extravagant reading of the commerce clause in vogue since 1937. Isolated words from the decision have been wrenched from context to serve ends unintended by the author."11For example, Chief Justice Marshall's opinion stated "the sovereignty of Congress, though limited to specified objects, is plenary as to those objects . . . ."12 But since 1937 this language has been twisted 180 degrees, as the word "plenary" is now held to mean that every issue of economic importance may be regulated by Congress.

Perhaps the treatment received by the Tenth Amendment is related to its purpose -- limiting the power of the federal government and enhancing that of the States and the people. That purpose is the antithesis of the liberal belief that society's elite groups -- academics, the judiciary, civil servants and bureaucrats -- know better what is good for us than we do. As Professor Tribe recently warned, "[i]f the Constitution's failure to nail down a given matter with absolute finality becomes an excuse for the states to adopt measures that will be upheld by the Supreme Court regardless of how much they undermine the integrity of the union . . . then the ability of the country to hold together in difficult times may be seriously endangered."13 In short, the judiciary and the academic legal community fear the consequences of the application of the Tenth Amendment -- more power to individuals and less to the collective institutions of government -- and so they do their best to construe it out of existence.

Recently it has been argued that the Tenth Amendment is enjoying a revival. Even Senator Dole seems to have recognized its importance, carrying a copy of it with him and occasionally inserting its 28 words into his speeches. The Amendment does seem to be receiving more attention from the federal judiciary, as evidenced by several decisions recently issued by the Supreme Court.14 In United States v. Lopez,15 for example, the Supreme Court, by the barest majority, struck down the Gun-Free School Zones Act, which applies to anyone who possesses a firearm in a place that such person believes or has reasonable cause to believe is a school zone, as exceeding Congress' Commerce Clause authority. Chief Justice Rehnquist, writing for the majority, stated that "[t]o uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."16

Is a new day dawning in the world of Tenth Amendment jurisprudence, or is Lopez but a false dawn? In the past we have seen the High Court start down the road of federalism, only to retrace its steps to the path of expanded federal powers.17 Mark Tushnet, an Assistant Dean of the Georgetown University Law Center, holds the more cautious view that "Lopez is one time in 20 years that the Court will find a statute unconstitutional."18 I think he has the better of the argument, for old habits are hard to break, and I see no concrete evidence that the federal judiciary is poised to end the "decades of judicial winking" that have pervaded Tenth Amendment jurisprudence since the 1930's.19 In fact, the Supreme Court recently struck down as unconstitutional an amendment to the Arkansas Constitution providing for term limits of U.S. Senators and Representatives elected by the people of the State of Arkansas.20 It is difficult to believe that such a decision was crafted by a court committed to federalism.

However shallow the depth of Tenth Amendment interest on the Court, one thing is clear: It fits the temper of our times. The conservative revolution that it is in progress around the globe is devolving power -- from governments to people, from groups to individuals, and from central governments to local ones. The most dramatic example of this revolution is the recent implosion of the USSR -- surely the world's largest bureaucracy, and indeed the single greatest example of the failure of centralized government in modern world history. The world has learned the perils of large, inflexible organizations and the burdens they place on growth and opportunity.

Corporate giants, such as General Motors and IBM, have been disabled by their enormous size and inflexibility; cafeteria employee benefits plans are replacing the one size fits all plans of the past; large main frame computers are being replaced by smaller, more flexible personal computers. Governing a nation of people is no different, because a nation operates neither effectively nor with due regard for individual liberty if relying on a large bureaucracy rather than a decentralized system of decision making. It is as true today as it was in 1787 that federalism plays an important role in self-government. As Justice O'Connor succinctly stated in New York v. United States, "the Constitution divides authority between federal and state governments for the protection of individuals"; and in Gregory v. Ashcroft,21 she proclaimed, writing for the majority, that:

[A] federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and its makes government more responsive by putting the States in competition for a mobile citizenry.22

The Gregory Court further noted that "[j]ust as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."23

Former West German Chancellor Konrad Adenuaer reportedly once observed that it was obvious God had placed limits on man's intelligence, but equally obvious that he had placed no such limits on man's foolishness. Of course, one state's foolishness need not be adopted by another; Congressional foolishness, however, is universal.

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While the sounds of federalism may only be faint in the Supreme Court, across the street in the lower body of Congress they are reaching a crescendo. Following the 1994 elections, the United States House of Representatives began the process of returning to a more federalist structure of government with a set of proposals to invest more power in individuals and state governments and less in the national government in Washington. Tax reductions are one example; limiting increases in national government spending is another. Proposals to return control of welfare systems to state government, to deregulate telecommunications and to end national affirmative action move in the same direction.

In contrast, the refrain of federalism remains muted as U.S. Senator Bill Bradley (D-N.J.) recently pointed out regarding his political party's view, "favoring the bureaucrat it knows rather than the consumer it can't control."24

So, the battle for individualism and decentralized government has barely begun. A few legislative half steps, as encouraging as they may be, do not create a policy, and it is far from clear that either Congress or the judiciary intends to pursue federalism any more seriously in the future than they have in the past. Therefore, it is time to both strengthen Congressional resolve and open a second front by enlisting the judicial branch of government in the battle.

A plan for a sustained devolution of power from centralized government might be accomplished through three mechanisms: a federalism statute; a federal statute narrowing the jurisdiction of the federal courts, and a constitutional amendment further clarifying the Tenth Amendment itself.

A Federalism Statute. The most effective way to focus the federal judiciary's attention on the importance of the Tenth Amendment, and to make sure that the federalist structure of government it commands is reinstated, is to force such ideas on the federal judiciary using congressional powers. A federalism statute with the purpose of both instructing the federal courts and empowering state governments would contain half a dozen elements, each of which is intended to promote a greater recognition of state and local governments' rights and to codify the intentions of Congress for its future role vis-a-vis the States.

First, the statute should contain a statement of principles to guide the judiciary in the application of the Tenth Amendment. Justice Thomas' dissent in the Term Limits case provides them:25

the federal government enjoys no authority beyond what the Constitution confers -- its powers are limited and enumerated;

the States can exercise all powers that the Constitution does not withhold from them; and

where the Constitution is silent about the exercise of a power, the federal government lacks it and the States enjoy it.

In addition to a statement of principles, the statute should state that the Tenth Amendment is intended to provide substantive limits on Congress' power; that the States need not rely solely on the political process for protection against burdensome Congressional exercise; and that the protections afforded the States by the Tenth Amendment should be enforced by the judiciary when Congress oversteps its boundaries and infringes on state sovereignty. The U.S. Supreme Court has not abandoned these concepts entirely, as indicated by its 1992 decision in New York v. United States,26 in which the Court struck down a portion of The Low Level Radioactive Waste Policy Amendments Act of 198527 as an impermissible Congressional mandate for states to regulate their citizens. But a codification of these principles is an important step in strengthening Tenth Amendment viability in the eyes of the courts.

Finally, the statute should follow with four specific statements of Congressional self-limitation:28

1. A statement that there shall be no preemption of state and local authority unless Congress expressly declares its intent to do so. This "clear statement" requirement in areas where Congress may be impeding state powers is important to the concept of political accountability. Only with full and accurate understanding of both who is making decisions and what decisions have been made can the people in a democracy make an informed decision as to the policies they desire to be implemented and who shall represent them in carrying out those policies.29

2. A statement that all federal laws and administrative regulations issued pursuant thereto shall not be interpreted by the courts to infringe in any material way upon the authority and capacity of state and local governments to perform their basic and traditional functions, unless expressly declared by Congress.

3. A provision prohibiting Congress from imposing conditions on federal grants unless such conditions are expressly stated, are reasonable, and have a direct relationship to the program being funded. This provision goes further than the Court would have allowed in the New York v. United States case, in which the Court acknowledged that conditions attached to the receipt of federal funds must "bear some relationship to the purpose of the federal spending . . . ."30

4. A limitation on federal mandates, drawn from the "Headlee amendment" approved in Michigan to that state's constitution.31 Such an amendment would restrict the federal government from mandating programs to state and local governments without appropriating the money necessary to comply with the mandates. Unfunded mandates undermine political accountability, by placing the selection of policies in Washington and the execution of them in state capitals.

A Federal Statute Narrowing the Jurisdiction of the Federal Courts. Further Congressional action in support of a federalist system of government could be achieved by utilizing the "Exceptions Clause" of Article III of the Constitution to remove jurisdiction from the federal courts on certain federalism issues.32 Although rarely invoked, the power of Congress to limit the jurisdiction of federal courts is well established.33 For example, in 1932 Congress passed and President Hoover signed the Norris LaGuardia Anti Injunction Act34 utilizing Article III to restrict the ability of federal courts to intervene in labor strikes.

The Supreme Court, in Lauf v. E. G. Shinner & Co., upheld this attempt by Congress to limit the jurisdiction of the federal courts, holding that "[t]here can be no question of the power of Congress to define and limit the jurisdiction of the inferior courts of the United States." 35

As Chief Justice Harlan F. Stone stated in Lockerty v. Phillips:36 "The Congressional power to ordain and establish inferior courts includes the power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."

These constitutional provisions can serve as the foundation of a statute to remove from the federal courts the power to review matters left to the States by the Constitution and the Tenth Amendment. While the drafting of a federal statute to narrow federal court jurisdiction would require careful thought, its objectives are clear: to restore state power, as envisioned by the Constitution, over a wide range of issues, including state and local taxation; the terms of employment of state and local governmental employees; educational standards, funding and transportation; state welfare, housing and transportation matters; the drinking age; abortion; local commerce; and so forth.

One example -- school bussing -- suggests the course to be followed. The education of children has traditionally been a family, local and state -- as opposed to a federal government -- matter. The Constitution in fact is silent regarding the federal government's role in education. The intrusion of the federal judiciary into schools, classrooms, curricula and programs through a lengthy series of bussing cases, beginning with Swann v. Charlotte - Mechlenberg Board of Education37 and just now beginning to be corrected,38 has placed federal district court judges in the role of school administrator, principal, tax collector,39 and counselor.40 Not only have these decisions been a massive trampling of individual liberties and school district authority, they have egregiously offended the spirit and the letter of the Tenth Amendment and undermined the principles of federalism.

An "Exceptions Clause" statute to remove the power of the federal courts over school bussing might read: "No court of the United States, as herein defined, shall have jurisdiction to issue any order in a case involving or growing out of a dispute involving the transportation of students to achieve a racial balance in schools or classrooms; nor shall any order regarding the transportation of students to achieve a racial balance in schools or classrooms be issued contrary to the public policy declared in this Act."

A Constitutional Amendment. Although more difficult to achieve, Constitutional amendments offer another viable method of restoring and strengthening federalist principles. In fact, to settle the issue of federalism with some degree of finality, a Constitutional amendment would be the most appropriate solution. The most direct approach would be to enact a constitutional amendment to clarify the Tenth Amendment, and while I do not offer the following as draft language of a constitutional amendment, it does convey the spirit of what needs to be enacted: "The several states and the people shall have all powers not expressly delegated herein to the federal government or which are directly necessary to, and inseparable from, such express powers, whether such powers existed prior to, or were created after, the ratification of this Constitution; and the federal government shall have only those powers as are expressly enumerated herein or which are directly necessary to, and inseparable from, such express powers."

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The question before us is not, unfortunately, that of the title of this workshop: What ever happened to the Tenth Amendment? We know the answer to that question -- in the past half century the Supreme Court has so emasculated the Tenth Amendment that it now resembles a wise and beloved ancestor -- revered and fondly remembered, but of very little consequence in day-to-day living.

The question before us is what we intend to do about it, and the answer to that question is far from clear. Of course the Supreme Court should overrule Garcia and its kin, including the majority's decision in Term Limits. We should continue to seek out and argue cases before the Court to persuade it to do so.

But it is unlikely that the High Court will act until it is given direction by Congress or the people. And so we must fight the battle for federalism by persuading both that a revival of the federalist principles embraced by the drafters of the Constitution is important to the future of the Republic and its citizens. A federalism statute would begin the debate; a proposal to utilize the "Exceptions Clause" of Article III of the Constitution to limit judicial consideration of the exercise of state power would sharpen it; and a proposed constitutional amendment would propel the debate to the forefront of social commentary.

* Attorney, Richards, Layton & Finger, Wilmington, Delaware; former state legislator, U. S. Congressman, and Governor of Delaware. This article is adapted from an address given at a workshop entitled "What Ever Happened to the Tenth Amendment" given by the Heritage Foundation and the Federalist Society on September 12, 1995. I would like to thank Delaware attorneys Peter Kirsh and Claudia DelGross for their valuable assistance in preparing this article.

1 U.S. Const. amend. X.

2 The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961).

3 United States v. Darby, 312 U.S. 100, 124 (1941).

4 New York v. United States, 112 S. Ct. 2408, 2418 (1992).

5 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985). See also Missouri v. Jenkins, 495 U.S. 33 (1990) (summarily disposing of the Tenth Amendment in deciding that a federal court can order a local government to levy additional taxes to pay for mandates imposed by the same federal court).

6 317 U.S. 111 (1942).

7 See Garcia, 469 U.S. at 552 (holding that the protection of the states from federal power "inhered principally in the workings of the National Government itself," rather than in the Constitution as interpreted by the Supreme Court). As observed by the (London) Economist, the Garcia decision stands for the proposition that "the States have some influence on [C]ongress and the [P]resident; if they do not succeed in using it to keep Washington from encroaching unduly on their powers, they should not expect the court to do the job for them by declaring federal laws unconstitutional. This view, said one of the dissenting justices, Mr. Lewis Powell, 'rejects almost 200 years of the understanding of the constitutional statutes of federalism.'" Nine for the Seesaw, The Economist, Mar. 2, 1985, at 21. See also William W. Van Alstyne, The Second Death of Federalism, 83 Mich. L. Rev. 1709 at 1726-27 (postulating that the Garcia decision interpolates a clause that "provides for the withdrawal of substantive judicial review of 'mere' federalism questions . . . .").

8 See, e.g., NLRB v. Jones & Laughlin Steel Corp., 57 S. Ct. 615 (1937) (finding that the National Labor Relations Act can be applied within a state if the employer's labor practices affect interstate commerce); Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that a restaurant that purchased meat that had been moved in interstate commerce fell within Congress' power under the Commerce Clause).

9 Michael McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1485 (1987).

10 22 U.S. (9 Wheat.) 1 (1824).

11 Richard A. Epstein, The Mistakes Of 1937, 11:2 Geo. Mason U. L. Rev. 5, 10 (1988).

12 22 U.S. (9 Wheat.) at 197 (emphasis added).

13 W. John Moore, Pleading the 10th, Nat'l L. J., July 29, 1995, at 1940, 1941-42 (quotations omitted).

14 United States v. Lopez, 115 S. Ct. 1624 (1995) (striking down as exceeding Congress' Commerce Clause authority the Gun-Free School Zones Act); U.S. Term Limits, Inc., v. Thornton, 115 S. Ct. 1842 (1995) (Justice Thomas, in dissent, sharply criticizing the majority's holding that an amendment to the Arkansas Constitution limiting the terms of United States Senators and Representatives was unconstitutional); New York v. United States, supra (holding that Congress cannot force States to regulate).

15 Supra.

16 115 S. Ct. at 1634.

17 See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976) (limiting the federal government's power to regulate the states; which was overturned nine years later in Garcia).

18 W. John Moore, Pleading the Tenth, supra at 1943 (quotations omitted).

19 William W. Van Alstyne, The Second Death of Federalism, supra at 1712.

20 U.S. Term Limits, Inc. v. Thornton, supra.

21 111 S. Ct. 2395 (1991).

22 Id. at 2399.

23 Id. at 2400

24 Wall Street Journal, August 21, 1995, at A8, col. 1.

25 115 S. Ct. at 1876 ("[w]hen they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States . . . . They affirmatively deprived their States of certain powers, see, e.g., Art. I, § 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated . . . . As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power -- that is, where the Constitution does not speak either expressly or by necessary implication -- the Federal Government lacks that power and the States enjoy it.")

26 Supra.

27 42 U.S.C. § 2021 (1985) (requiring states unable to dispose of all waste generated within their borders to take title to such excess waste upon the request of the waste's generator or owner and imposed liability for the failure to do so).

28 I give credit to Professor Robert Freilich for his discussion on a national federalism statute in his article entitled Returning to a General Theory of Federalism: Framing a New Tenth Amendment United States Supreme Court Case, 26 Urb. Law., 215 (1994).

29 See generally Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 Harv. L. Rev. 1959 (1994).

30 112 S. Ct. at 2423 (emphasis added). Such a provision would force the court to re-think its position on conditions to federal grants, such as its 1987 decision in South Dakota v. Dole, 483 U.S. 203 (1987), in which the Court upheld a federal statute directing the Secretary of Transportation to withhold federal highway funds from states failing to adopt Congress' choice of a minimum drinking age.

31 Mich. Const. art. IX, §§ 25-32 (1979). Section 25 of the Michigan Headlee Amendment provides: "Property taxes and other local taxes and state taxation and spending may not be increased above the limitations specified herein without direct voter approval. The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government. A provision for [emergency] conditions is established and the repayment of voter approved bonded indebtedness is guaranteed." (emphasis added).

32 Section 1 of Article III provides, in part, "[t]he judicial power of the United States, shall be vested in one Supreme Court and in such inferior Courts as Congress may from time to time ordain and establish." (emphasis added). The "Exception Clause" of Section 2 of Article III provides "[i]n all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (emphasis added).

33 See, e.g., Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922) ("[t]he Constitution simply gives to the inferior courts the capacity to take jurisdiction in [certain] enumerated cases, but it requires an act of Congress to confer it. And the jurisdiction, having been conferred, may, at the will of Congress, be taken away in whole or in part . . . .") (citations omitted); Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938) (upholding Congress' attempt to limit the jurisdiction of federal courts in labor matters) (discussed infra).

34 29 U.S.C.A. §§ 101-115 (1973).

35 303 U.S. at 330 (footnote omitted). Section 101 of the Act provides: "No court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of this Chapter . . . ." 29 U.S.C.A. § 101.

36 319 U.S. 182, 187 (1943) (citations omitted).

37 300 F. Supp. 1358 (W.D.N.C. 1969).

38 Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (holding that the district court exceeded its remedial authority in ongoing school desegregation litigation).

39 See Missouri v. Jenkins, supra note 5. As Governor of Delaware, the author was personally involved in repelling one attempt by the federal judiciary to usurp state taxing authority. In Evans v. Buchanan, 582 F.2d 750, 774-75 (3rd Cir. 1978) (in banc), the Third Circuit Court of Appeals, in a unanimous decision, rejected an order by the district court which authorized a county agency to set property taxes in excess of the maximum rate established by the State.

40 The District Court in Evans v. Buchanan, 447 F. Supp. 982 (D.Del. 1978), for example, required, in addition to a pupil assignment plan, that the New Castle County, Delaware, school system instigate in-service training for school administrators, staff and other faculty to "cope with the desegregation process," Evans v. Buchanan, D.Del., C.A. Nos. 1816-1822, at 12 (Jan. 9, 1978)(ORDER), as well as provide counselling and guidance for students, school construction and modification guidelines, and human values programming.