So What Is This Tenth Amendment We've Been Hearing About?

There has been a lot of talk about the Tenth Amendment lately. During the recent Republican primary, I received mailers from candidates for Justice of the Peace and State Representative pledging to uphold the 10th Amendment. During the final days of the campaign, Gov. Rick Perry ran an ad in which he stated, "As Governor, I will always champion the Consitution's Tenth Amendment which is supposed to keep Washington from messin' with Texas."

So, what is the 10th Amendment and how does it keep Washington from messing with Texas? The 10th Amendment states:

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.

So, basically, the Constitution says that the federal government must stay within its enumerated powers. So far, so good. However, when you look at the powers delegated to the federal government by the Constitution and its amendments, they can be interpreted pretty broadly. Here are some of the powers granted to the federal government:

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Const. Art. I, Sec. 8

Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

U.S. Const. Art. IV, Sec. 4.

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

U.S. Const. Amend. XIV.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

U.S. Const. Amend. XVI.

Here are some of the powers granted to the federal government:

1. The government may collect taxes to provide for the general welfare.
2. The government may borrow money on the credit of the United States.
3. The government may regulate commerce with foreign nations and between states.
4. To pass all laws necessary and proper to carry out the powers granted to the government.
5. To levy a federal income tax.
6. To protect the states from invasion or domestic violence.
7. To enact laws to protect civil rights.

When you start talking about terms such as providing for the general welfare, passing laws necessary and proper and regulating interstate commerce, you can encompass a lot of power. The U.S. Constitution (unlike the Texas Constition) is relatively brief and speaks in terms of generalities.

So, can the Governor of Texas keep Washington from messing with Texas? According to the Constition:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. Art. VI.

Laws of the United States are the Supreme Law of the Law according to the Consitution. Therefore, a state cannot just ignore a law it doesn't like. So what can a state do?

* It can refuse to accept federal funds which come with strings attached (as Gov. Perry has done);
* It can file suit in federal court to block laws which it believes are unconstitutional (which Texas Attorney General Greg Abbott has done); and
* It can urge Congress to reject laws which impose upon the states.

However, the notion that the States can pick and choose which laws they want to obey was put to the test when state started seceding in the 1860s. A Republican president established the precedent that the United States is not just a voluntary association of sovereign states, but is a unified nation. That is not going to change.