This article traces the historical development of the Tenth Amendment to the United States Constitution - from its origins in the debates over ratification through its shifting judicial interpretation across two centuries. For the amendment's text, meaning, and contemporary debates, see the Main Topic page. For disputes over its legal scope, see Tenth Amendment - Legal Consensus.

The Tenth Amendment's immediate ancestor is Article II of the Articles of Confederation (1781), which provided that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” This formulation reserved powers to the states explicitly and by name, and the word “expressly” was understood to deny the federal congress any implied powers not enumerated in the text.

Experience under the Articles convinced many political leaders that the central government lacked effective authority to tax, regulate commerce, or enforce its own enactments. The Constitutional Convention of 1787 was called in part to address these deficiencies.

The Constitution drafted at Philadelphia in 1787 replaced the Articles' explicit reservation of state sovereignty with a structure of enumerated federal powers, leaving no equivalent of Article II in the original document. Anti-Federalist critics - including figures such as George Mason, Patrick Henry, and the pseudonymous authors writing as “Brutus” and “Federal Farmer” - argued that the Necessary and Proper Clause (Article I, Section 8) and the Supremacy Clause (Article VI) together gave the new federal government dangerously open-ended authority.

Ratification proceeded state by state through 1787 and 1788, with several states approving the Constitution on the understanding that a bill of rights limiting federal power would be added. Virginia, New York, and other states submitted proposed amendments alongside their ratifications; several of these proposals called for explicit language reserving undelegated powers to the states.

James Madison initially argued, in Federalist No. 45, that the powers reserved to the states would be “numerous and indefinite” compared to the “few and defined” powers granted to the federal government. He also argued in Federalist No. 39 that the new government was neither wholly national nor wholly federal, but a composition of both. Despite his early resistance to a bill of rights as unnecessary, Madison subsequently championed amendments in the First Congress.

Madison introduced his proposed amendments in the House of Representatives on 8 June 1789. His original draft of what became the Tenth Amendment read: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.” During debate, Representative Thomas Tucker of South Carolina moved to insert “expressly” before “delegated,” which would have restored the limiting language of the Articles of Confederation. The House rejected this insertion. The Senate likewise declined to add “expressly.” The final text - omitting that word - was approved by Congress and sent to the states.

The amendment was ratified on 15 December 1791 as the last of the ten amendments comprising the Bill of Rights.

The first major interpretation of the Tenth Amendment came in McCulloch v. Maryland (1819), in which the Supreme Court, per Chief Justice John Marshall, upheld the constitutionality of the Second Bank of the United States and struck down a Maryland tax on it. Marshall's opinion read the Necessary and Proper Clause broadly, holding that Congress could employ any means reasonably adapted to a legitimate constitutional end. Addressing the Tenth Amendment, Marshall noted the deliberate omission of “expressly” and concluded that the amendment did not restrict Congress to powers spelled out word by word in the Constitution. The amendment, in Marshall's reading, confirmed the federal-state distribution of authority without independently limiting implied federal powers.

In Gibbons v. Ogden (1824), Marshall construed the Commerce Clause broadly as extending to all commercial intercourse among the states, further limiting the practical domain reserved to the states under the Tenth Amendment.

South Carolina Senator John C. Calhoun developed the most systematic challenge to the Marshall Court's nationalist interpretation. Drawing on the Virginia and Kentucky Resolutions of 1798-1799 - authored by James Madison and Thomas Jefferson respectively in response to the Alien and Sedition Acts - Calhoun argued that the Constitution was a compact among sovereign states, each of which retained authority to judge the constitutionality of federal acts and to nullify those it found unconstitutional within its own borders.

The immediate occasion was the protective tariffs of 1828 and 1832, which South Carolina's legislature declared null and void in November 1832. President Andrew Jackson responded with a Proclamation to the People of South Carolina rejecting nullification as incompatible with the Constitution and threatening federal enforcement. The crisis was resolved through a compromise tariff in 1833, but the underlying constitutional dispute was not settled.

In the antebellum decades, arguments from state sovereignty and the Tenth Amendment were invoked on multiple sides of the slavery controversy. Southern states asserted state authority to protect the institution from federal interference. Northern states, meanwhile, passed “personal liberty laws” in the 1840s and 1850s obstructing enforcement of the federal Fugitive Slave Acts - themselves an exercise of federal power - on the ground that state officials could not be compelled to enforce federal law. The Supreme Court addressed part of this conflict in Prigg v. Pennsylvania (1842), holding that the federal government had exclusive power over fugitive slave rendition but that states could not be compelled to assist.

The secession of the Southern states in 1861 was premised in part on claims of state sovereignty derived from compact theory. The Confederate Constitution (1861) preserved most of the federal structure but added explicit language in its preamble affirming that each state acted “in its sovereign and independent character.”

The Union's victory in the Civil War and the subsequent constitutional amendments - the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) - significantly altered the federal-state balance. The Fourteenth Amendment in particular imposed affirmative obligations on states and granted Congress power to enforce those obligations, subjecting state action to federal scrutiny in ways the original Constitution had not contemplated.

During Reconstruction, Congress enacted legislation directing state officials and regulating conditions within states under its Fourteenth Amendment enforcement power. The Supreme Court began limiting these powers in the 1870s. In United States v. Cruikshank (1876) and related cases, the Court read the Fourteenth Amendment narrowly, restricting federal power to state action rather than private conduct, and thereby restoring substantial state autonomy over civil matters.

Between roughly 1895 and 1937, the Supreme Court developed what scholars later called “dual federalism” - a constitutional doctrine holding that the state and federal governments each occupied distinct, mutually exclusive domains, with the Tenth Amendment serving as an affirmative limitation on federal power even when that power might otherwise fall within an enumerated head.

In Hammer v. Dagenhart (1918), the Court struck down a federal law prohibiting interstate shipment of goods produced with child labor, holding that production and manufacture were purely local matters reserved to the states, beyond Congress's commerce power. The Tenth Amendment appeared in the opinion as a structural limit confirming this reserved domain.

The Court applied similar reasoning in Bailey v. Drexel Furniture Co. (1922), invalidating a federal child labor tax as an intrusion on state authority over manufacturing. During this period, the Court also struck down federal minimum wage and maximum hour legislation on related grounds.

President Franklin D. Roosevelt's New Deal programs - enacted in response to the Great Depression beginning in 1929 - produced direct confrontation between the administration and the Supreme Court. The Court initially invalidated several major New Deal statutes, including the National Industrial Recovery Act (A.L.A. Schechter Poultry Corp. v. United States, 1935) and the Agricultural Adjustment Act (United States v. Butler, 1936).

In the same term as Roosevelt's proposal to expand the Court's membership, the Court upheld the National Labor Relations Act in NLRB v. Jones & Laughlin Steel Corp. and sustained a state minimum wage law in West Coast Hotel Co. v. Parrish. The personnel of the Court shifted through retirements and new appointments over the following years.

The transformation was completed in United States v. Darby (1941), in which the Court sustained the Fair Labor Standards Act, expressly overruled Hammer v. Dagenhart, and characterized the Tenth Amendment as “but a truism that all is retained which has not been surrendered.” This formulation reduced the amendment to a declaratory statement with no independent limiting force.

Wickard v. Filburn (1942) extended the Commerce Clause to reach a farmer's home-grown wheat consumed on his own farm, on the theory that such activity, in aggregate across many farms, substantially affected interstate commerce. This “substantial effects” test effectively foreclosed most Tenth Amendment challenges to federal economic regulation.

Through the Warren Court era (1953-1969), the Tenth Amendment remained largely dormant as a judicial tool. The expansion of federal civil rights legislation - including the Civil Rights Act of 1964 and the Voting Rights Act of 1965 - was sustained under the Commerce Clause and the Fourteenth and Fifteenth Amendment enforcement powers, with Tenth Amendment objections receiving little traction.

The Burger Court produced one notable Tenth Amendment ruling in National League of Cities v. Usery (1976), in which a five-Justice majority held that the Tenth Amendment prohibited Congress from applying federal minimum wage and maximum hour requirements to state and local governments in their exercise of traditional governmental functions. Justice William Rehnquist's majority opinion attempted to identify a category of state activities immune from federal interference.

National League of Cities proved difficult to apply consistently. In EEOC v. Wyoming (1983), the Court declined to extend it to age discrimination requirements applied to state game wardens. Nine years after Usery, the Court overruled it in Garcia v. San Antonio Metropolitan Transit Authority (1985), holding that states must look to the political process - rather than judicial enforcement of the Tenth Amendment - for protection against federal overreach. Justice Harry Blackmun, who had joined the Usery majority, wrote the Garcia majority opinion.

Beginning in the early 1990s, a majority of the Supreme Court reasserted the Tenth Amendment as a meaningful structural limit on federal power.

In New York v. United States, the Court struck down a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that required states to “take title” to radioactive waste if they failed to provide for its disposal. Justice Sandra Day O'Connor's majority opinion held that Congress may not commandeer state legislatures to enact or administer federal regulatory programs. “The Federal Government may not compel the States to enact or administer a federal regulatory program,” O'Connor wrote. The anti-commandeering principle was grounded in the structural separation between federal and state governments that the Tenth Amendment confirms.

In United States v. Lopez, the Court for the first time since 1937 struck down a federal statute as exceeding the Commerce Clause. The Gun-Free School Zones Act of 1990 was held not to regulate an activity having a substantial effect on interstate commerce. Chief Justice Rehnquist's majority opinion identified three categories of activity Congress may regulate under the Commerce Clause and held that mere possession of a firearm near a school fell in none of them.

Printz v. United States extended New York v. United States from legislative to executive commandeering. The Brady Handgun Violence Prevention Act of 1993 required local chief law enforcement officers to conduct background checks on handgun purchasers. Justice Antonin Scalia's majority opinion held this requirement unconstitutional under the anti-commandeering doctrine, citing the Tenth Amendment and the structural design of the Constitution.

In United States v. Morrison, the Court invalidated the civil remedy provision of the Violence Against Women Act of 1994, holding that gender-motivated violence was not an economic activity with a substantial effect on interstate commerce. The decision reinforced Lopez and signaled that the Court's Commerce Clause revival was not an anomaly.

The Roberts Court largely preserved the Rehnquist-era federalism decisions while declining to extend them significantly.

In National Federation of Independent Business v. Sebelius (2012), the Court upheld the individual mandate of the Affordable Care Act as a valid exercise of the taxing power, but five Justices agreed that it could not be sustained under the Commerce Clause - the first time the Court had held that a purported exercise of the Commerce Clause exceeded congressional authority since Morrison. The same decision also held that the Affordable Care Act's Medicaid expansion, as structured, violated the Tenth Amendment by unconstitutionally coercing states to expand their programs under threat of losing all existing Medicaid funding - the first time the Court had applied the “coercion” doctrine to invalidate a federal spending condition.

Murphy v. National Collegiate Athletic Association (2018) extended the anti-commandeering doctrine to federal statutes that “commandeer” state law directly - here, the Professional and Amateur Sports Protection Act, which prohibited states from authorizing sports gambling. Justice Samuel Alito's majority opinion held that Congress may not dictate to state legislatures what they may or may not do, whether by directing affirmative action or prohibiting it.

The 2020s have seen continued invocation of the Tenth Amendment in litigation over federal vaccine mandates, immigration enforcement obligations, and firearms regulations, with the Court addressing related structural federalism questions in several cases.

Some historians and legal scholars argue that the deliberate omission of “expressly” from the Tenth Amendment's text settled the question of implied federal powers at the founding; others contend the omission was a compromise that reflected no consensus on the scope of implied powers. See Dual Federalism Viewpoint and Nationalist Federalism Viewpoint.

Whether the Virginia and Kentucky Resolutions of 1798 represent Madison's and Jefferson's authoritative interpretation of the Tenth Amendment, or merely political pamphlets produced in a specific crisis context, remains disputed among historians. See Nullification Viewpoint.

Some historians argue that the “switch in time” of 1937 was driven primarily by the external pressure of Roosevelt's court-packing threat; others contend the doctrinal shift reflected internal evolution within the Court independent of political pressure. See Tenth Amendment - Debate.

Whether Garcia v. San Antonio Metropolitan Transit Authority (1985) correctly assessed the adequacy of the political process as a substitute for judicial enforcement of federalism is contested among constitutional scholars. See Tenth Amendment - Legal Consensus.

The relationship between the anti-commandeering doctrine and the Supremacy Clause - specifically, whether state non-cooperation with federal programs is constitutionally distinguishable from state nullification - is an ongoing scholarly and judicial debate. See Nullification Viewpoint and Tenth Amendment - Debate.

1. Articles of Confederation art. II (1781).
2. U.S. Const. amend. X (ratified 15 December 1791).
3. James Madison, Federalist No. 45 (1788): “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
4. James Madison, Federalist No. 39 (1788).
5. 1 Annals of Cong. 424, 441-42 (1789) (Madison's introduction of amendments, 8 June 1789).
6. 1 Annals of Cong. 761 (1789) (Tucker's motion to insert “expressly”).
7. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
8. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
9. John C. Calhoun, “Exposition and Protest” (1828); “Fort Hill Address” (1831).
10. Virginia Resolutions (1798); Kentucky Resolutions (1798, 1799).
11. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842).
12. Confederate States of America, Const. pmbl. (1861).
13. United States v. Cruikshank, 92 U.S. 542 (1876).
14. Hammer v. Dagenhart, 247 U.S. 251 (1918).
15. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
16. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
17. United States v. Butler, 297 U.S. 1 (1936).
18. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
19. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
20. United States v. Darby, 312 U.S. 100, 124 (1941).
21. Wickard v. Filburn, 317 U.S. 111 (1942).
22. Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241.
23. Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437.
24. National League of Cities v. Usery, 426 U.S. 833 (1976).
25. EEOC v. Wyoming, 460 U.S. 226 (1983).
26. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
27. New York v. United States, 505 U.S. 144, 188 (1992).
28. United States v. Lopez, 514 U.S. 549 (1995).
29. Printz v. United States, 521 U.S. 898 (1997).
30. United States v. Morrison, 529 U.S. 598 (2000).
31. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
32. Murphy v. National Collegiate Athletic Association, 584 U.S. 453 (2018).
33. Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and Expressly Delegated Power, 83 Notre Dame L. Rev. 1889 (2008).
34. Alison L. LaCroix, The Ideological Origins of American Federalism (Harvard University Press, 2010).
35. Edward S. Corwin, “The Passing of Dual Federalism,” 36 Va. L. Rev. 1 (1950).