The Choice: The 10th Amendment
Rights not specifically given to the Federal government belong to the states and the people.
Issue #913 The Choice, Friday, August 22, 2025
Every Friday until the end of 2025, we will publish a post about each of the 27 Amendments to the Constitution.
The Tenth Amendment is the last of the Bill of Rights that was added to the U.S. Constitution in 1791. It defines the principle of “federalism,” which is that the national and state governments share power.
The 10th Amendment, with only 28 words, says:
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.
Throughout American history, conservatives and red states have always rushed to declare “States’ Rights” unless they want the federal government to take away the policies, rights, and privileges of the groups they don’t like.
The 10th Amendment is intended to limit the power of the Federal government.
As Donald Trump, the #ConvictedFelon and #AdjudicatedRapist now occupying the People’s House is trying to not only consolidate all powers to the Federal government, and particularly to himself and the Executive Branch, the 10th Amendment. becomes especially important.
The Tenth Amendment emerged from an era of intense debate among the Founding Fathers about the scope of federal authority. The Articles of Confederation had fostered a government too weak to function effectively, leading to the Constitutional Convention of 1787. However, as the new Constitution proposed a stronger central government, fears of tyranny resurfaced among the states. The Bill of Rights, particularly the Tenth Amendment, was crafted to alleviate these anxieties by ensuring state sovereignty and protecting individual liberties.
Alexander Hamilton and Thomas Jefferson represented the spectrum of this debate. Hamilton advocated for a robust federal system, while Jefferson championed states' rights. The Tenth Amendment was a compromise, a reassuring promise to the states that their local powers and autonomy would remain intact.
The Tenth Amendment's language serves as a complex boundary marker. By stating that powers not explicitly granted to the federal government are reserved to the states or the people, it implicitly affirms that the federal government is one of limited, enumerated powers.
In contemporary times, the Tenth Amendment is at the heart of several heated political and legal debates. From healthcare reforms to marijuana legalization and gun control, states often assert their rights to legislate independently of federal mandates. The amendment thus serves as a basis for legal challenges against perceived federal overreach.
By attempting to slow federal overreach, having different laws for different states also makes things complicated for individuals who may have rights in one state, while those same rights are denied in other states.
For instance, the Affordable Care Act faced scrutiny under the Tenth Amendment. While the Supreme Court upheld the law's constitutionality, dissenting opinions highlighted a concern for encroaching federal power. Similarly, as more states legalize marijuana, they do so in defiance of federal statutes, invoking states' rights as protected by the Tenth Amendment.
The issue of marriage quality, particularly regarding state versus federal authority to regulate marriage, directly relates to the Tenth Amendment due to its emphasis on federalism and states' rights. This foundational principle comes into play when evaluating the authority to legislate marriage laws.
Historically, marriage has been predominantly regulated by states, with each state setting its own laws regarding marriage licenses, age of consent, and more, as the Constitution does not explicitly grant the federal government the power to legislate marriage.
However, the federal government has, at times, intervened in marriage regulation, especially when issues of equality and civil rights were at stake. A notable example is the Defense of Marriage Act (DOMA) and subsequent landmark Supreme Court cases, such as United States v. Windsor (2013) and Obergefell v. Hodges (2015). The latter case resulted in the legalization of same-sex marriage across the United States, based on the Fourteenth Amendment's Equal Protection Clause, effectively reducing the states' ability to regulate marriage exclusively.
Just as the Supreme Court reversed the Roe v Wade decision that gave a federal guarantee to abortion access, the right wing is now trying to get the Supreme Court to reverse the Obergefell v. Hodges case that legalized same-sex marriage nationwide.
The Tenth Amendment exemplifies the ongoing balancing act between unity and diversity within the United States.
Critics argue that this decentralization can exacerbate inequalities, as state policies on education, healthcare, and civil rights can differ dramatically. Proponents, however, see it as a necessary safeguard against an overreaching federal state and a reflection of the diverse perspectives and needs of the American populace.
The Tenth Amendment, in preserving the rights of states and the autonomy of citizens, continues to shape the nation's legal and political landscape, reminding us that in America, POWER BEGINS WITH THE PEOPLE and flourishes through the states they inhabit.
Have you ever considered how the 10th Amendment applies to you?
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https://torrancestephensphd.substack.com/p/white-milksops-protest-in-dc-to-advocate