Constitution

The Tenth Amendment: Powers Reserved to the States and the People

The Tenth Amendment reserves to the states or the people all powers not delegated to the United States and not prohibited to the states.

4Conservative Editors · Published November 8, 2026

The text

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.

In plain English

The Tenth Amendment states the premise on which the Constitution is built: the national government has only the powers delegated to it.

Delegated powers. What Congress, the President and the courts may do is listed in the Constitution. Anything not listed is not theirs.

Reserved powers. The powers not delegated to the United States, "nor prohibited by it to the States," belong "to the States respectively, or to the people." States hold what is sometimes called the police power: authority over health, safety, morals, education, family law and most criminal law.

What it does not say. The Articles of Confederation said powers not "expressly" delegated were retained. The Constitution's drafters left out the word "expressly," so powers can be implied, as the Necessary and Proper Clause indicates. The Amendment does not say what the delegated powers are; Article I does.

The Tenth Amendment is a "truism," in the Court's phrase from United States v. Darby: it states a basic fact about the structure of the Constitution, but it has also been used to limit what Congress can do to the states.

What the Founders said

Madison made the promise in Federalist No. 45: "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." The federal government's powers would be exercised principally on external objects, war, peace, negotiation and foreign commerce, while the states' would extend to "all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."

Hamilton, in Federalist No. 84, said a bill of rights was unneeded because the government had no power to violate such rights. The Tenth Amendment was demanded by several ratifying conventions, including those of Virginia, North Carolina and New York, to make that structure explicit.

Brutus and other Anti-Federalists doubted the promise, and predicted that the Necessary and Proper and Supremacy Clauses would swallow the states. The debate over whether they were right is still the central issue of American federalism.

How the courts have read it

  • McCulloch v. Maryland (1819): the omission of "expressly" meant that Congress had implied powers; a national bank was a permissible means.
  • United States v. Darby (1941): the Tenth Amendment "states but a truism that all is retained which has not been surrendered."
  • Garcia v. San Antonio Metropolitan Transit Authority (1985): the Court said state protection lay in the political process, not judicial enforcement.
  • New York v. United States (1992): Congress may not commandeer state legislatures to enact federal programs.
  • Printz v. United States (1997): Congress may not command state executive officers to carry out federal law, such as background checks.
  • United States v. Lopez (1995) and United States v. Morrison (2000): the commerce power does not reach noneconomic activity such as gun possession near schools.
  • NFIB v. Sebelius (2012): Congress may not coerce states into accepting a Medicaid expansion by threatening existing funding.
  • Murphy v. NCAA (2018): Congress may not forbid a state from repealing its own laws on sports betting.
  • Dobbs v. Jackson Women's Health Organization (2022): the Court returned the regulation of abortion to the people and their elected representatives.

Why it matters now

Federalism is the structural principle that distinguishes the American system from most others. Fifty states act as laboratories, to use Justice Brandeis's phrase, and they allow citizens to choose among different laws by voting, or by moving. A national policy must be right for everyone; a state policy need only be right for one state.

The doctrine is not a conservative monopoly. Progressive states invoke it when they diverge from Washington on immigration, marijuana or the environment, and conservative states do the same on guns, education and energy. A principled commitment to the Tenth Amendment, rather than a tactical one, would apply the same rule to both.

The cases since 1992 show the Court enforcing federalism by means of the anti-commandeering rule. Congress may use its own powers, and it may offer incentives, but it may not draft the states into federal service. Practical questions, from health care to immigration enforcement and elections, depend on that line, and the Tenth Amendment is the textual reminder that it exists.

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