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What Happened to the Tenth Amendment?

James Madison, often referred to as “the father of the Constitution,” wrote in The Federalist Papers, No. 45, pp. 292–93, that: ”The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation that states: “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.” Unfortunately, the Supreme Court and the rest of the federal government have used the Necessary and Proper Clause** and the Commerce Clause*** of the Constitution to strip away power from the states and rights from the people almost from the very beginning of the new Republic.

In McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court interpreted the Necessary and Proper Clause to expand the authority of Congress to all areas related to one of its enumerated powers. Since then, the Supreme Court has rarely declared a federal law unconstitutional for violating the Tenth Amendment. To the contrary, Congress and the Supreme Court have used the Commerce Clause to expand greatly the power and scope of the federal government.

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