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Saturday, August 10, 2013

Tenth Amendment Incorporation

As far as I am aware, no scholar has ever argued in favor of Tenth Amendment incorporation.  Most seem to think the very idea is a logical impossibility: an amendment meant to protect the states cannot be applied against the states.  I think, though, that the case for incorporation is at least as strong as the case against it.

First of all, the Supreme Court currently treats the federalism principles of the Tenth Amendment as guarding personal liberty.  As Justice Kennedy noted in Bond, “‘[F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” And, just to drive home the link between local self-government and individual liberty, Kennedy declared, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”  This right belongs to individual citizens, not to “states.”  Thus, states cannot choose to waive Tenth Amendment-based constraints on federal power. See New York v. United States.  This also explains why individuals have standing to raise Tenth Amendment-based claims. Bond.

Given this jurisprudence, Fourteenth Amendment enforcement seems appropriate under any of the main tests for incorporation.

More after the break

There is no one test for substantive due process incorporation, but in McDonald v. Chicago, the Court accepted both the Duncan and Glucksberg tests.  So an incorporated right should be “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation's history and tradition.”  Federalism, of course, is both fundamental to American liberty (See, again, Bond) and is, obviously, deeply rooted in our nation’s history and tradition. 

For those in favor of moving from substantive due process to the Privileges or Immunities Clause, most scholars believe the P or I Clause protects personal liberties listed in the Bill of Rights.   In terms of the Tenth Amendment, theorists like Akhil Amar (and pretty much everybody else writing on the subject) views the Tenth Amendment as only a structural provision, and not a personal right, thus placing the Amendment outside the zone of possible incorporation.  But this seems to follow the old Garcia approach to Tenth Amendment federalism (federalism as mere political principle).  This is not, however, the current approach of cases like New York and Bond which treat the Tenth Amendment as an enforceable individual right.  In other words, as currently interpreted by the Court, the Tenth Amendment falls within the zone of protectable incorporatable personal rights.

Nor is applying the Tenth Amendment against the states a logical impossibility.  We already know from cases like New York that states cannot waive Tenth Amendment-based limitations on federal power.  So, if a state law directs state officials to assist in the enforcement of a federal law that exceeds the powers of the federal government, and doing so affects the liberty of an individual, this should give rise to a Tenth Amendment-based claim against the state.  For example, a state law that authorizes local law enforcement officials to enforce truancy laws against students who fail to attend the newly established United States Government Public Schools.

In sum, given current jurisprudence, it seems to me that the argument in favor of Tenth Amendment incorporation is quite logical.  The case against it seems to rely on abandoned doctrines like Garcia’s “political federalism.”  In fact, incorporation seems to fit with what the Court is already doing.   

Posted by Kurt Lash on August 10, 2013 at 11:15 AM | Permalink


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A 1983 cause of action against state officials would come into play whenever state officials violate the federalist separation of power principle establish by the Tenth Amendment. In my hypothetical, state officials are enforcing a state law against an individual (a student) that violates the individual's retained right to state-regulated public education. For the purposes of the hypo, I am assuming running public schools in the states remains beyond the constitutional reach of the federal government (a debatable point course).

Your particular formulation seems more like one particular way that state action could trigger the incorporated tenth, as opposed to a statement of the general principle I've presented in this and my prior response to William. My particular focus is on actions by state itself that violate the SOP principles mandated by the Tenth Amendment.

Posted by: Kurt Lash | Aug 12, 2013 12:30:02 PM


The basic principle is that just as horizontal separation of power prevents any branch of the federal government from "giving away" constitutionally established power (see Clinton), so vertical separation of power prevents the states from giving away their constitutionally established power. Where horizontal SOP is enforced as a judicially identified structural principle, vertical SOP is established through a textual amendment, the Tenth. This amendment can be read as binding the states as well as the federal government (incorporation). Your hypothetical (which is interesting and deserves deeper thought) might trigger the 14th/10th, but I'm not sure. If we are talking about states condemning land that the feds wanted condemned, that might be an example of cooperative federalism. On the other hand, states authorizing federal condemnation (in a case where the feds have no const. power of their own) would trigger the incorporated 10th.

Posted by: Kurt Lash | Aug 12, 2013 12:10:23 PM

"Given how the word "congress" in the First Amendment is completely elided in the incorporation context"

Congressman Bingham et. al. is wondering what the problem is here.

Why is it "barely plausible" that when determining the privileges and immunities of citizens," let's say, we would look at the rights in effect protected by the 1A?

Congress has no power to abridge the freedom of speech or prohibit the free exercise of religion etc. in part because they were seen as fundamental rights, perhaps natural rights, and to some extent the basis of republican government. When determining the protections of the 14A, it would be more than "barely plausible" to do the same.

It was not merely some federalism move to deny Congress with the power to abridge speech -- states deemed censorship a threat to liberty too. The 13A and 14A greatly changed federalism principles by determining states alone could not be trusted to protect basic rights of citizens, including those expressed in the 1A. But, it is appreciated that the argument the the Establishment Clause is somehow unique is not followed here. Gitlow v. U.S. was apparently wrongly decided too.

Posted by: Joe | Aug 12, 2013 10:53:55 AM

Given how the word "congress" in the First Amendment is completely elided in the incorporation context it's plausible, if only barely, to argue that the Tenth Amendment could be enforced to reserve power to the people as against the states.

The problem is that you'd need to come up with an enumeration of state powers comparable to those listed for the federal government.

Posted by: brad | Aug 12, 2013 9:45:21 AM

To what extent, and how, can the people exercise the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States" that are reserved to the States and the people? Can the States trump the powers reserved to both the States and the people, or are these powers parri passu? Would incorporation limit the powers of the people under the 10th? Incorporation could be a can of worms cast into the seas of the Constitution. Maybe it's time to cut bait.

Posted by: Shag from Brookline | Aug 12, 2013 7:31:36 AM

"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."

I can see how this can be applied against the states. At times, when an enumerated powers case arises, it is noted that some states are supportive of the law in question. But, this isn't good enough.

If the usage of federal power in question is not authorized by the Constitution, the states (or the people) can not authorize it. Unlike the right to counsel, if Congress has no power over certain intra-state commerce, states cannot waive their own power. Congress also cannot waive its legislative power and allow the President to use it instead.

I can see states voluntarily taking part in some federal program that is not covered by some delegated power and in return penalize a person who interferes in some way. Since the powers are reserved to the state or the people, the state is acting unconstitutionally. The federal program is invalid and the state invalidly went after the person.

Posted by: Joe | Aug 12, 2013 12:35:31 AM

Kurt, thanks for the response. Just so I understand, the claim is that if the 10th Amendment is incorporated against the states, it provides a cause of action against states for the individual liberty violation that resulted from a federal violation of the Tenth Amendment, at least when the state subsequently approved the federal act in some way (in your hypo, by enacting a state law that directs or authorizes state officials to act in ways that help enforce the federal policy)?

Posted by: Orin Kerr | Aug 11, 2013 10:23:08 PM

As a conservative who likes text, I have to say I hate almost all of these federalism cases (Lopez, etc.), but Bond is particularly nauseating.

With that said, the 10th Amendment does not say "the people have a right to federalism." What it says is, "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."

Two points:

(1) On its face, the amendment reserves residual authority to the States or the people, not just the people. So... ?

(2) The "right" to federalism, unlike the right to counsel or to speech or to guns is parasitic of our two-tiered structure of government. The idea of "ordered liberty" is that, regardless of whatever else your government looks like, if it takes away your right to practice religion or think or what have you, it's basically tyrannical. What of that?

Posted by: anon | Aug 11, 2013 9:43:34 PM

Hi Kurt,

An example might help me think this through. Until 1875, the federal government was thought not to have the power to condemn land through eminent domain; but when it needed land, it was common for the states to do the condemning. Is the idea that after 1867/8 it would have been unconstitutional for state legislatures to voluntarily authorize condemnations on behalf of federal authorities?

Posted by: William Baude | Aug 11, 2013 7:59:26 PM

Orin, the posting hypothetical provides an example of what tenth amendment incorporation would look like. Incorporation takes away state power TO carve out zones of exclusive federal jurisdiction in cases where no such federal jurisdiction is granted by the constitution. Actually, I think it would do more than that (sometimes even concurrent federal power is forbidden under the tenth amendment. See Printz.) Basically, state officials would not be allowed to violate the tenth amendment constraints of federalism even when tempted to do so for reasons of expediency, corruption, or any other reason. Fedralism does not protect the states or state officials; it preserves the constitution's division of power, the better to secure individual liberty.

Posted by: Kurt Lash | Aug 11, 2013 11:19:08 AM

Kurt, what would it mean for the 10th Amendment to be incorporated? In Bond, Kennedy was saying that the Tenth Amendment is about the diffusion of power: No one government enjoys complete jurisdiction over all concerns of public life. If you accept that the Tenth Amendment is about denying any one government complete jurisdiction over public life and you incorporate that against the states, does that mean that you take way state power and carve out an exclusive zone of federal power? An alternative would be to say that incorporation ensures that the states can't do what the feds can't do under the 10th Amendment. But if you take that view, then Kennedy's language no longer makes sense. I'm curious about which approach (or which other approach) you had in mind.

Posted by: Orin Kerr | Aug 10, 2013 11:07:48 PM

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