A friend requested I post this up for him but before I do just a quick little note.

I've been busy as all hell lately and haven't been able to update this, however I'll probably work on something tonight and try to get it up by tomorrow. Until then enjoy Lord Jauncey's article he requested me to put up.

'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.'

The Tenth Amendment; a concession to Antifederalists apprehensive of the power to be wielded by Federal government. The Articles of Confederation had limited the powers of the U.S. government to those expressly stated, something the Constitution does not. How does this safeguard work in practice? To understand the contemporary position it is useful to summarise the historic development of the federal use of the commerce clause to order American society. Article I, § 8 of the Constitution confers on Congress the power, amongst others, to regulate commerce among the several States. In Gibbons v. Ogden(1), New York had passed legislation regarding the licensing of steamboats which contradicted federal law on the same subject. Marshall held that Congress had a complete monopoly on interstate commerce, with no part of it reserved to the states. He defined 'commerce' as meaning all commercial intercourse, not just buying and selling; activities within a state could be regulated if they were part of interstate commerce. Marshall allowed that completely internal commerce was reserved to state jurisdiction, but arguably this simply reflects a truism. The Tenth Amendment cannot reduce a Constitutional power, which is entire and unreserved, not partial.

This was further refined in the 'Shreveport Rate Case'(2). Rather than a direct restriction, here the issue was favourable discrimination for freight within Texas, therefore indirectly prejudicing Shreveport rail carriers. The court held that the activity, though intrastate, was within the federal remit since the carriers were interstate operators and the effect on interstate commerce was substantially burdensome. It is hard to see how the court could have held otherwise without virtually crippling the federal regulatory power. For instance in Gibbons, New York could have removed the outright restriction on the appellant's steamboats but implemented discriminatory tariffs to make Gibbons' business uncompetitive. The courts thus recognised that a measure of local interference was essential to control of interstate commerce. Cases of this era (mid-18th to early 19th Century) show that Congress acted constitutionally regarding its commerce power if the activity had a substantial economic effect on interstate commerce, or if the activity was part of the 'stream of commerce'(3). The Supreme Court was less enthusiastic to uphold legislation passed for moral or social reasons. In famous cases involving child-labour(4) and fair wages/ hours(5), the court held that what Congress sought to regulate was production, which was a local matter not sufficiently related to interstate commerce. These decisions were rightly overturned, by U.S. v. Darby(6) and N.L.R.B v. Jones & Laughlin Steel Corp.(7) respectively. Of course, Hammer had been incorrectly decided; the power to regulate interstate commerce is complete and unqualified. Nowhere does Article I, § 8 say that it may not be used to improve conditions of employment. In other words, the motives or rationale of Congress when exercising this power are irrelevant. States' protection from undesirable legislation is procedural in form (through Congressional representation), not substantive. The other point of error was arguably in the finding that 'production' was not a part of commerce. In Carter, Sutherland J said;

Contracts to buy, sell, or exchange goods to be transported among the several states, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purposes of such transit among the states, or put in the way of transit, may be regulated; but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce(8)

But if transportation of goods is one of the 'instrumentalities' of commerce and therefore fit for regulation, the goods themselves must be (quintessential) instruments of commerce where they are produced with a view to the interstate market. We can assure ourselves of this by taking away the element of production from interstate commerce, and see how much of commerce remains. If a line must be drawn, why draw it there? When does the commodity enter the definition of commerce? After the sale has been agreed on paper, but the stock is still in the local warehouse? As it is loaded onto the truck for delivery? Once the truck's engine has started? Or only when the hand-break is removed and the wheels begin to turn? Of course none of these are correct. The fact that the product is imminently bound for interstate trade puts its production within the federal scope. The fact that a product commonly traded between states may potentially be sold within local boundaries does not alter its ability to effect interstate economy. Admittedly, a distinction must be made somewhere, and a good illustration as to where (and when) the line should be drawn is contained in Arkadelphia Milling Company(9), but as per Holmes J;

commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business(10)

The Supreme Court determined accurately that Congress wished to regulate to promote the 'general welfare'. The principle is simple enough; states might allow poor work conditions (such as low wages, prohibition of unions, etc) that lowered the cost of production for manufacturers, with the corollary lowering of the commodity's price on the market. However, other states would be compelled to follow suit in order to make the products of their own state competitive, which would lead to a general lowering of conditions across the country. Even though better working conditions and increased pay have historically proved beneficial for an economy by creating a healthier, more productive class of consumers, no State could afford to do this unilaterally. Effectively, it would mean subsidising the economies of other states, since some of the extra money in workers' pockets would 'leak' into out-of-state products. In other words, there was little or no incentive for the states to act. A state that wished to develop more progressive working conditions would ironically put itself at a disadvantage as a percentage of the wage increase would be spent on cheaper products from states with more archaic practices.

This is where the Federal government comes in. We can assume that Congress was not anxious to see twentieth century America develop the working practices of the Victorian Industrial-era. By legislating for civilised employment standards it bettered the lot of American families in ALL the states, without burdening any of them. This led to one of the greatest economic turn-arounds in history; from sweat-shops and starvation in the countryside to becoming a world power in a decade or so.

Since Darby and Jones & Laughlin, the Supreme Court has held few limits to the government's commerce power; several recent cases are significant enough to be worth mentioning. In Lopez(11), the Supreme Court struck down a federal statute based on the commerce clause, holding that the activity sought to be regulated (possession of guns in a school zone) did not 'substantially affect' interstate commerce. This is probably a fair finding; in Lopez there was little attempt to determine the extent of the effect, or what part of commerce the activity affected. Previous cases which favoured the Congressional power in local instances contained clear-cut examples of discrimination to clearly defined parties (steamboat operators, railway carriers, wheat growers(12), etc), whereas in Lopez the damage contended was wide-ranging and ill-defined. More importantly, the activity was not in itself economic, and so not within the jurisdiction of federal power. In Morrison(13), criminal legislation regarding gender-motivated violence was struck down for much the same reasons as Lopez. Had the Supreme Court found for the U.S. in these cases, it is hard to imagine anything Congress could not have regulated in a given locality.

In National League of Cities(14), the Tenth Amendment was held to bar Congress from applying federal legislation to state employees, since this violated state autonomy. This is one of the few times in modern jurisprudence that the Tenth Amendment has been cited as an affirmative limitation on the commerce power; Rehnquist J said;

an express declaration of this limitation is found in the Tenth Amendment(15)

However, this was reversed less than 10 years later in a similar case involving municipal employees(16). It now appears that a state may be regulated in certain administrative activities as an employer (although the Eleventh Amendment will protect a state from being sued by its own citizens in federal courts). Evidently there are few restrictions when Congress uses the commerce power. It may not appropriate states' law-making apparatus to pass its own legislation, nor force it to regulate in a certain way(17). In New York v. U.S. Congressional legislation ordering the state to 'take title' to radioactive waste was held unconstitutional. However, the restriction on federal power does not derive from the Tenth Amendment, which instead, confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States(18) However Congress may still use less coercive means; in New York v. U.S., O Conner J said;

This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices(19)

Modern jurisprudence regarding the Tenth Amendment tends to treat it as a truism or tautology. It does remain useful as an ideological hook for judges when Congress strays too far beyond its jurisdiction, and so reminds the federal government that state sovereignty is taken seriously. The combination of constitutional enumeration and the Tenth Amendment reserves solely intrastate activity to the states, but by itself the Tenth Amendment does little to actively protect states sovereignty. It is more of a reminder that any powers left over from Government return to the states.

footnotes

(1)Gibbons v. Ogden, 22 U.S. 1 (1824). (2)Houston, East & West Texas Railway Company v. U.S., 234 U.S. 342 (1914). (3)Swift & Co. v. U.S., 196 U.S. 375, at 399 (1905). (4)Hammer v. Dagenhart, 247 U.S. 251 (1918). (5)Carter v. Carter Coal Co., 298 U.S. 238 (1936). (6)U.S. v. Darby, 312 U.S. 100 (1941). (7)N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). (8)Carter, 298 U.S., at 301. (9)Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., 249 U.S. 134, at 151 (1919). (10)Swift & Co., 196 U.S. at 398. (11)U.S. v. Lopez, 514 U.S. 549 (1995). (12)Wickard v. Filburn, 317 U.S. 111 (1942). (13)U.S. v. Morrison, 529 U.S. 598 (2000). (14)National League of Cities v. Usery, 426 U.S. 833 (1976). (15)previous, at 842. (16)Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). (17)New York v. U.S., 505 U.S. 144 (1992). (18)previous, at 157. (19)previous, at 166.