The Tenth Amendment: A Reflection

The net result of ten years of extraordinary activity is that the Supreme Court has gone a long way toward squaring the legal concept of American federalism with the intent—and, it is tempting to add, the plain language—of the Constitution. The most important thing that has happened is that the Court has snuffed out the heresy of “dual federalism.” This subtle weapon of laissez-faire economics was utilized at a fairly early date, notably in the two child labor cases, to strike down federal reform legislation, but it achieved great weight, which comes with reiteration in important cases, during 1935 and 1936, when the Court was grimly determined to save the country from the horrors of the New Deal. Briefly, the doctrine holds that the mere existence of states constitutes an independent limitation on the exercise of national powers. Thus, Justice Day asserted in the first child labor case: “The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.” This theory is inconsistent with the principle of federal supremacy, a principle which the present Court has restored to its proper place in American constitutional law. But, in sustaining a sweeping exercise of national power, the Court has by no means been unmindful of the proper status of the states in the Union. Furthermore, it is a mistake to assume that every growth of national power is at the expense of state power. While it is true that we have more government at the federal level today than ever before, we also have much more state government. A fuller exploitation by Congress of the powers committed to it by the Constitution has been matched by a fuller exploitation of the authority reserved to the states. The laments of losing litigants should not be taken as a correct assessment of the present position of the American states.

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The Commerce Clause From Expansion To Extortion

Journal of Business & Economics Research (JBER) ◽

10.19030/jber.v7i6.2307 ◽

2011 ◽

Vol 7 (6) ◽

Author(s):

Patrick J. Reville ◽

William A. Bottiglieri

Keyword(s):

United States ◽

Federal Government ◽

United States Supreme Court ◽

The United States ◽

United States Constitution ◽

Interstate Highway ◽

Commerce Clause ◽

Government Power ◽

Indian Tribes ◽

Tenth Amendment

The Commerce Clause of the United States Constitution gave the federal government power over foreign trade, trade with the Indian tribes and trade “among several states.” By lack of further enumeration and the passage of the Tenth Amendment to the Constitution, it would be reasonable to conclude that commerce that is truly intrastate would, therefore, be within the regulatory province of the states. In fact, that was the interpretation initially reached and subsequently followed by the United States Supreme Court. But in 1942, that changed and, over the course of the following 60+ years, to date the Court has concluded, by an expansive interpretation of that federal power granted, that Congress and the federal government have virtually unbridled power to regulate not only those areas that would traditionally be considered “commerce” or “interstate commerce”, but, moreover, in areas that seemingly have nothing to do with commerce, interstate, or otherwise. This paper will trace the journey that the justices have taken down this judicial interstate highway and the methods that the federal government has employed to achieve its objectives. Hence, the subtitle of this paper: From Expansion to Extortion.

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