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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Episode Transcript

SPEAKER_00 (00:00):
Welcome back to the Civic Senior Podcast.
Today we're talking about the10th Amendment.
And if you haven't listened tothe Ninth Amendment podcast,
this is the one right beforethis, highly suggested.
Dr.
Beienberg is back.
Dr.
Beyenberg, how does the 10thAmendment reserve power to the
states?

unknown (00:17):
Yeah.

SPEAKER_01 (00:17):
So the 10th Amendment, and we've talked a
little bit because it's in somesense core to federalism.
So I would also, in addition tothe Ninth Amendment one you
called out, there was an earlierpodcast talking about federalism
in general and what it'ssupposed to do in protecting
states, as well as a section, aparticular one on Federalist 39.
So I would just also direct yourattention both to those.

(00:38):
But I want to focus on somedifferent parts for this
section.
So the 10th Amendment was by farthe most requested provision by
the ratifying conventions.
And the 10th Amendmenteffectively says that the powers
that are not given to Congressby the Constitution, as in one
of the enumerated powers, mostlyArticle 1, Section 8, but a few

(01:00):
other places, or that arebasically prohibited to the
states.
So Article 1, Section 10.
State, you can't do this, this,this, this, this.
But effectively, unless Congresshas been given a power or a
state has been told they can'tdo this, they still basically
get to regulate this and dealwith this themselves.
And so the defenders of theConstitution were saying, look,

(01:23):
this is already a fundamentallylimited federal government.
Skeptics of the Constitutioncalm down and sign it.
They argued again, I think,defensively.
The most natural reading ofArticle 1, Section 1 is in fact
basically the logic of the 10thAmendment.
All legislative powers hereingranted, right, go to Congress.

(01:44):
It doesn't say all legislativepowers, it's only those that are
granted here.
So that's seemingly kind of thelogic of the 10th Amendment.
Similarly, the necessary andproper clause, we talked about
that as well in an earliersession, right?
The discussion of that veryclearly indicates that it's only
going to let Congress do theimplementation work of an

(02:05):
enumerated power.
It's promised repeatedly inFederals 39 and Federals 45.
So the critics of theConstitution say, you've
already, by your ownrecognition, you're saying this
is basically already in here.
And we want to believe that.
So it's not costing us, costingyou anything to spot us that.
And originally the skeptics ofthe Constitution, they don't

(02:25):
want to do the bill, or excuseme, the defenders of the
Constitution don't want to do abill of rights, but they realize
pretty quickly this especiallyis an easy gift.
We keep telling them this isbasically already in the
constitution.
It's the most natural reading.
It's already implicit in it.
So fine.
And so again, this is one, infact, some of the ratifying
conventions, this is basicallyonly thing they ask for.
We talk about them wanting abill of rights, but really this

(02:46):
more than speech or jury is whatthey want.
A 10th Amendment is the most,something like the Ninth
Amendment is the next most.
And then trial by jury invarious individual rights.
So it's dealing with a veryspecific request, which comes
out of the basic pitch that theuh defenders of the Constitution
are making.
So what does that mean inpractice?

(03:09):
Well, the idea in constitutionallaw that we keep coming back to
is that the states are presumedto have sovereignty over health,
welfare, safety, and morals,what Conlaw calls uh the police
powers, versus the federalgovernment is fundamentally one
of limited and enumeratedpowers.
And so this the stateconstitutions, again, they don't

(03:31):
have anything like this.
They have the opposite sort ofassumption here.
And so this is part of why theway that the reconstruction
amendments are written arebasically always two parts.
There's a restriction on thestates in like part one or two,
and then a Congress shall havepower to enforce this by

(03:52):
necessary by appropriatelegislation.
And so what that's doing isreflecting again the logic of
the 10th Amendment, which is ifyou say, for example, in the
14th Amendment, no state shalldeprive anyone of due process or
equal protection or theprivileges or immunities right,
that is a restriction on thestates consistent with the part
of the 10th Amendment that sayswe can put constraints on the

(04:14):
states and those restrict thestates' power.
But then there's the secondpart, which is Congress shall
have the authority to implementthat by appropriate legislation.
So that is to say we're creatinga new enumerated power for
Congress to implement theprohibition on slavery, the
guarantee of privileges andimmunities and equal protection,
the prohibition against raciallydiscriminatory suffrage in the

(04:37):
sort of then obsolete sectiontwo of the 14th Amendment, which
gets replaced by the 15thAmendment.
So those are basically allstructured in a way to reflect
that.
And this is also part of the waythat reconstruction itself
operates.
There's this narrative that wesometimes have, and we'll talk
more about this one that theCivil War is big government

(04:59):
Republican Party that is thenationalist party against the
states-right Southern Party.
So the Civil War is a federalismfight.
But that doesn't really makesense if you look at the fallout
when they're debatingReconstruction, because the
Republicans in Congress want torebuild the South, but this
causes a problem.
There is no enumerated power torebuild the South as a general

(05:22):
rule.
Like there's no, like we can dowhatever we want here.
And the ReconstructionRepublicans spend a lot of time
coming up with, they have funnysounding names, but theories
that basically will explain howthey can regulate the South
without expanding federal powerin the North or the West.
Because they remain verycommitted to this idea of the

(05:43):
10th Amendment.
And I won't go into all thedetails on that, but basically,
they increasingly come to saythe southern states can we can
treat them as territories now,whether secession was illegal or
legal, but like they're evensomewhat agnostic on that
question.
But by shooting at us, startinga war, fighting with us, asking

(06:04):
other countries to basicallyrecognize them as a sovereign
power, they no longer have theprotection of the 10th
Amendment.
They are territories, just like,for example, the Mexican session
that's given over after theMexican-American War, right?
So Congress is restrictedinsofar as they can't screw with
the Bill of Rights in one ofthose territories, but they can

(06:25):
govern it directly like theycould Washington, D.C., which
they have an enumerated powerfor.
And so, but none of thosearguments make any sense if you
think that the Civil War is justthe national government won and
therefore we can do whatever wewant, and federalism is gone.
No, these people still caredeeply about, they care deeply
uh about the 10th Amendment.
So that's at its core what theidea of reserving power is uh is

(06:49):
supposed to do.
This case, this the 10thAmendment gets sort of dismissed
as a truism.
There's an opinion by uh JusticeHarlan Stone in a case called
Darby versus United States,which is an interpretation of
the Commerce Clause.
So I'm going to spare theCommerce Clause discussion for
later.
But he says effectively it's atruism, which he gets hammered

(07:10):
for for saying Stone is gettingrid of federalism.
Stone may be getting rid offederalism because of the way he
treats the Commerce Clause, butthat argument is basically true,
which is if the 10th Amendmentwas in there or not really
doesn't matter, insofar as theoriginal logic of the
Constitution very clearly holdsthat Congress only has limited
and enumerated powers, thestates retain all the rest of

(07:32):
them that have been constrained.
So this is a carryover with somemodification from the Articles
of Confederation, but somethingthat pretty much all the
ratifying conventions need to beassured of, or they won't sign
the Constitution.

SPEAKER_00 (07:47):
So, Dr.
Bidenberg, what have been someways that the 10th Amendment has
been utilized that might havebeen controversial throughout
history?

SPEAKER_01 (07:55):
Right.
So the the in terms of anexplicit invocation of the 10th
Amendment, I think it's betterto think of them more as sort of
people citing the backgroundprinciples behind it.
So one dilemma that pops upreally early is the you know the
power of the bank.
And I don't want to go into thewhole bank thing because there's
multiple podcasts we'll do onjust that one.

(08:16):
But those are arguments veryearly on at the founding about
are these powers actuallygranted to Congress?
And particularly the one that Ithink is easy to miss and where
this gets really complicated isthe Congress's power to tax and
spend.
And how that interacts with theTenth Amendment becomes
controversial early on.

(08:37):
So originally there's languageakin to the ability to tax and
spend for the general welfare inthe Articles of Confederation.
So Madison, when they'repitching the Federalist papers,
says, look, this just does thesame thing.
This just means we can tax andspend for the other enumerated
powers.
So that the general welfareclause, the spending power,

(08:58):
whatever you want to call it, isnot a freestanding power, but is
basically the almost financialpart of the necessary and proper
clause.
After the Constitution isratified, particularly Hamilton
argues, no, this is afreestanding power.
It's its own enumerated power.
Congress can tax and spendeffectively for whatever it

(09:19):
wants.
There have been some Hamiltonscholars that have said it's a
little more nuanced than that.
But ultimately, this is a debateabout is taxing and spending an
enumerated power, or is iteffectively an implementation,
which really implicates allthese 10th Amendment questions
because if the federalgovernment can tax and spend,
and we'll and I will talk aboutthis, I know in the next
session, that the federalgovernment can tax and spend for

(09:41):
whatever it wants, thatmassively expands the scope of
federal authority because it cancreate incentives or it can sort
of induce regulation or createincentives that nudge things, uh
nudge things along.
So that becomes one of thereally early fights about the
10th Amendment, effectively, isis the taxing and spending power

(10:01):
a corollary of the otherenumerated powers, or is it its
own freestanding power?
And the 10th, because they haveto answer this 10th Amendment
question.
So there's lots of othercircumstances where the 10th
Amendment has beencontroversial.
And I know this one's runninglong, so we'll hold and pick up
some of those in another one.

SPEAKER_00 (10:19):
Yes.
So stay tuned for part two.
We're going to get a little bitmore into the implementation of
the 10th Amendment.
Dr.
Beinberg, thank you.