Frustrated because the conservative Supreme Court often struck down his New Deal legislation, President Franklin D. Roosevelt (FDR) proposed to “pack” the Court in 1937 by adding a new justice for every justice over the age of 70. If FDR had succeeded in placing three liberal justices on the Court, he would have started winning cases 7-5 instead of losing 5-4.
But in the face of widespread opposition in the public and in Congress, FDR backed off from this scheme. Nevertheless, some justices grew concerned that if they continued their conservative course, their independence would be threatened, so the voting dynamics on the Court shifted to the left.
In United States v. Darby (1941), the Supreme Court upheld the Fair Labor Standards Act based on the Commerce Clause of Article I, Section 8, even though nothing in the Constitution authorizes the federal government to regulate labor. The Court added:
Our conclusion is unaffected by the Tenth Amendment, which provides:
‘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 amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
In a sense, the Court was correct. The 10th Amendment merely sets in concrete what the American framers assumed was true from the beginning – that the federal government has only those powers delegated to it by “We the People” through the Constitution. But by affirming that principle, the framers firmly established the cornerstone of free republican government.
If a federal official wants to do something and says, “Show me where the Constitution says I can’t do this,” he has it all turned around. He must show where the Constitution gives him that power; otherwise, he doesn’t have that power.
The 10th Amendment is still part of the Constitution, but liberal scholars and many on the courts have treated it as almost a dead letter. Fortunately, it may undergo a revival with more conservative judges on the courts. In U.S. v. Lopez (1995), a 5-4 divided Court invalidated a federal statute prohibiting the possession of firearms in school zones because nothing in the Constitution authorizes such legislation and therefore the 10th Amendment reserves that power to the states. Writing for the majority, Chief Justice Rehnquist dismissed the government’s argument that the Commerce Clause authorized such action because many firearms are sold in interstate commerce. Rehnquist held that remote possibility was insufficient to establish a substantial relationship between the statute and interstate commerce.
Justice Thomas concurred, but wrote separately, emphasizing that the “substantial relationship” test was no longer a valid framework of analysis for Commerce Clause cases. He also urged his fellow justices to look to the framers’ intent, which allowed Congress to regulate trade, exchange, and transportation of goods across state lines and did not authorize Congress to regulate manufacturing, production, and other such matters. In future cases, I hope the courts will follow Thomas’ advice.
The 10th Amendment Center produces fine scholarship arguing for a strict interpretation of the powers delegated to the federal government and for vigorous application of the 10th Amendment to invalidated unconstitutional overreaches of federal power. Their website is worth a visit.
As we said in the beginning, keeping the federal government within its appointed bounds is the key to preserving freedom.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu), as Senior Counsel for the Foundation of Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He lives in rural Pike Road, Ala., and may be reached for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
Don't miss out! Subscribe to our newsletter and get our top stories every weekday morning.
