The Tenth Amendment and State Sovereignty:
History and Contemporary Issues

Edited by Mark R. Killenbeck.
Roman & Littlefield and
Berkeley Public Policy Press (Lanham, Maryland), 206 pp.,
$69.00 cloth, $28.95 paper, 2001.

TheTenth Amendment can best be described as the last visible
battlefield breastwork of the constitutional struggle between
the forces of centralization and those of localism. But just
as military advances have made nineteenth-century earthen breastworks
mostly obsolete, so, too, have developments in American jurisprudence
eviscerated the protective qualities of the Tenth Amendment.
Justice Holmes advanced the evisceration of the Tenth Amendment
in 1920, when he adjudicated a conflict between a 1916 treaty
and a Missouri law. He postulated: “The treaty in question
does not contravene any prohibitory words to be found in the
Constitution. The only question is whether it is forbidden by
some invisible radiation from thegeneral terms of the Tenth
Amendment. We must consider what this country has become in deciding
what that Amendment has reserved” (Missouri v. Holland,
252 U.S. 416).

According to this Holmesian logic, rather than
the Tenth Amendment constraining the expansion of national power,
national power feeds off the reserved powers of the States as
national developments dictate. In other words, the reserved powers
of the States are conditioned within the context of national
power. Moreover, because the Tenth Amendment lacks sustainable
substantive content, Supreme Court Justices have license to define
the States’ reserved powers as their respective
ideological proclivities dictate. This jurisprudential fact is
most recently manifested in Lawrence v. Texas, through
which the court majority’s ongoing expansion of privacy
rights trumped a portion of Texas’s police powers prerogative.

Professor Killenbeck echoes Justice Holmes’s Tenth Amendment
jurisprudence by placing it in the context of the “transformation
of the federal government’s role in response to the realities
posed by a substantially changed nation. . . .” This leaves
begging the question whether “the transformation of the
federal government’s role” is a good in itself. And
if not, the original purpose of the Tenth Amendment was to thwart
that transformation in order to protect the very things that
an ever-expanding national government is despoiling, such as
government based upon the consent of the governed.

This is not to say that the justices don’t play games
with their audiences—politicos, pundits, and the public—by
dressing up their Tenth Amendment jurisprudence in the garb of
constitutionality. One would think that the Framers’ original
intention was to create unlimited government run by an unaccountable
national bureaucracy doling out goodies to their respective
constituents. There is ample evidence that the justices themselves
have been caught up in believing that they are, in fact, interpreting
the Constitution and not essentially using it as a platform from
which to launch their ideological missiles into the American
cultural, economic, and political landscape. Some recent scholarship
has even postulated that such missiles are launched with the
tacit consent, indeed encouragement, of the American public and
elected officials. The unstated modus operandi of judicial activism
is that the people are too stupid to know what is in their long-term
interests and political elites are too cowardly to confront that
stupidity. So, in a roundabout way, the justices are at the vanguard
of democracy and, perhaps, the most democratic autocratic institutions
ever devised.

One thing is certain, the Tenth Amendment’s reserved powers
(which include the States’ police powers to promote the
health, safety, and morals of their respective citizens) have
undergone substantial erosion. Whether in the area of Congressional
commerce powers, Fourteenth Amendment equal protection, due process,
and/or the selective incorporation of the Bill of Rights, the
States’ public policy prerogatives (or what was once affectionately
referred to as States’ rights) are increasingly subservient
to national public policy objectives.

This does not mean that the States’ powers have not seen
exponential growth. All levels of government have grown at phenomenal
rates. But the States’ public policy prerogatives (e.g.,
abortion, education, gay rights, private property, church and
state, etc.) on issues that define the States as distinct communities
have been substantially curtailed. As announced by Justice Stone,
prejudice against discrete and insular minorities would be subjected
to a “more searching judicial inquiry” (United
States v. Carolene Products Co.,
1938). Accordingly, state
policies that the court determines to be “prejudicial” against
minorities, (religious, racial, sexual orientation, national
origin, etc.) are presumptively unconstitutional. As presented
by Justice O’Connor’s concurrence in Lawrence, the
issue is “whether, under the Equal Protection Clause, moral
disapproval is a legitimate state interest to justify by itself
a statute that bans homosexual sodomy, but not heterosexual sodomy.
It is not. Moral disapproval of this group, like a bare desire
to harm the group, is an interest that is insufficient to satisfy
rational basis review under the Equal Protection Clause. Indeed,
we have never held that moral disapproval, without any other
asserted state interest, is a sufficient rationale under the
Equal Protection Clause to justify a law that discriminates among
groups of persons.”

The volume of essays under review presupposes that the Tenth
Amendment and state sovereignty are viable and still instrumental
in American jurisprudence. Admittedly it is somewhat difficult
for me to consider seriously a book that begins with such a premise.
I initially asked myself, “What’s all the fuss about?” In
the scheme of American constitutionalism, is it really that important
if a State pays its public employees overtime pay, if a victim
of domestic violence may seek a civil remedy from a U.S. District
Court, if the local constabulary has to conduct background checks
on gun purchases until the U.S. Department of Justice has its
computers operational? Perhaps. But such issues appear to be
Tenth Amendment rearguard actions as the States retreat under
the weight of U.S. Supreme Court case law and the protectorate
of Congressional intergovernmental transfers. In other words,
Is the contest over? Have the States lost their capacity to be
self-governing republics within the context of American federalism?
Or can these rearguard actions be a sign that the States have
not been routed, that they retained enough state sovereignty
to reorganize and rebuild the Tenth Amendment breastworks into
meaningful protection for States’ rights, subsidiarity,

These terms are not pejorative. Contrary to a strong undercurrent
in the book that equates the Tenth Amendment with slavery, segregation,
other “regressive state policies,” it must not be
forgotten that abolition, integration, child labor laws, workers’ rights
and most, if not all, so-called progressive public policies have
their origins in States’ rights within the context of American

To the consternation of the advocates of national power, the
Court, in a five to four decision, did check the expansion of
national power in 1995, when, in United
States v. Lopez,
it actually
acknowledged limits to Congressional commerce powers vis-à-vis
the Tenth Amendment. This was especially alarming for nationalists
since, in Garcia v. San Antonio Metropolitan Transit Authority,
(1985), the Court had seemed prepared to dismiss the Tenth Amendment
as an annoyance. In Garcia, the court concluded
that the “Framers chose to rely on a federal system in
which special restraints on federal power over the States inhered
principally in the workings of the National Government itself,
rather than in discrete limitations on the objects of federal
authority”—that is, the Tenth. In Lopez,
however, the Court came to the realization that those “workings
of the National Government” did not suffice, and curtailed
Congressional commerce powers by striking down the Gun-Free School
Zones Act of 1990.

Explicating an emerging (albeit what I contend is an imagined)
Rehnquist Court trend, epitomized by the switch from Garcia
to Lopez and
a handful of other pro-Tenth Amendment opinions, this book attempts
a simplified (and thereby presents a somewhat distorted) account
of Tenth Amendment jurisprudence and history. For example, faced
with a resurgent Tenth Amendment, Professor Rakove admits that “[f]or
a Madisonian like myself, who happens to think that the national
government has indeed played a crucial role in enlarging rather
than limiting fundamental rights and liberties, this is not a
happy thought.” Rakove needs to explain better the manner
in which, and the extent to which, the author of the 1798 Virginia
Resolutions would be supportive of marginalization of the States’ police
powers by an ever-expanding national government and the crushing
demise of popular control under the weight of national elites.

Another case in point is Professor Leuchtenburg’s account
of Hammer v. Dagenhart (1918). The Supreme Court struck
down the provision of the Keating-Owen Child Labor Act of 1916
that prohibited the shipment in interstate commerce of products
of child labor. Leuchtenburg claims that Justice Day deliberately
misreadthe Constitution and that the decision “hovered
like a dark cloud” over the FDR administration and the
plans of his Secretary of Labor to “institute a Welfare
State.” Moreover, “‘Hammer’ caused such
consternation not merely because of its faulty reasoning, but
probably even more because it denied the United States government
any capacity to end the plague of child labor and similar injustices.” What
Leuchtenburg fails to realize is that a United States Government
that has the power to end child labor, also has the power to
protect it, or even worse, institute the welfare state that he
bemoans was briefly derailed by Hammer.

Contrary to the picture painted by Leuchtenburg, Justice Day
did not endorse child labor. As he maintained in his opinion, “there
should be limitations upon the right to employ children in mines
and factories in the interest of their own and public welfare,
all will admit. That such employment is generally deemed to require
regulation is shown by the fact that the brief
of counsel states that every State in the Union has a law upon
the subject, limiting the right to thus employ children. . .
. It may be desirable that such laws be uniform, but our Federal
Government is one of enumerated powers. . . . In interpreting
the Constitution it must never be forgotten that the nation is
made up of States to which are entrusted the powers of local
government,” (Hammer v. Dagenhart, 247 U.S. 251).
It is obvious that Justice Day supported progressive child labor
laws, but he would not bend to reaching this policy objective
through unconstitutional means.

Taking the text and historical context of the Constitution more
seriously, Professor Yoo supports a revitalization of the Tenth
Amendment. He adumbrates the constitutional pillars of American
federalism, such as the electoral and political processes, but,
more importantly, that of judicial review. The editor would have
been well advised to place Professor Yoo’s chapter not
towards the end of the book, but at the beginning. By doing so,
readers would have been better prepared to appreciate the relevance
of American federalism and the role of the States in procuring
and sustaining a viable republic.

Yoo’s chapter in and of itself makes The Tenth Amendment
and State Sovereignty
worth reading. This comment is not
meant to minimize the contribution to Tenth Amendment scholarship
made in the other chapters. To the contrary, Professors Killenbeck,
Leutchenburg, Rakove, and Yoo provide a great service to students
of American jurisprudence by first addressing a highly relevant,
if not the most relevant, development in American case law,
and, second, mirroring the Court’s divergent approaches
to Tenth Amendment jurisprudence.

Marshall DeRosa is the author of several books,
including The Confederate Constitution of 1861: An Inquiry
Into American Constitutionalism
and The Politics of
Dissolution and the Rhetorical Quest for a National Identity.
teaches political science at Yorktown University in Yorktown,