[pash]

We've had this conversation before [0], and I pointed out then that the tautological interpretation of the Tenth Amendment appeared only in the first decades of the twentieth century, not coincidentally in the jurisprudence of the very judges who started the parade of vast new federal powers rolling.

The interpretation of the Tenth Amendment as a tautology—as a uniquely meaningless bit of prose in our constitution—did not exist in the first eleven or twelve decades of our country's history, and it seems to be quite clearly at odds with the explanation of Federalist 45 [1], in which James Madison wrote,

> 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 former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. 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; and the internal order, improvement, and prosperity of the State.

0. https://news.ycombinator.com/item?id=4948005

1. http://press-pubs.uchicago.edu/founders/documents/amendXs4.h...

[rayiner]

Im not relying on judicial authority. I'm talking about the plain text of the amendment. And while the tautology point wasn't written until this century, it's not like the 10th amendment was used as a check before that.

The Federalist quote doesnt pertain to the 10th amendment. It is about the concept of enumerated powers in general. The 10th amendment isn't what makes the federal government one of enumerated powers, which is precisely why its superfluous.

And it is true that the framers envisioned the states having power over ordinary life. They also envisioned the federal government having broad power over interstate commerce. They didn't foresee that technological change would cause the latter to swallow the former.

[pash]

The text of the amendment is not tautological in itself: nowhere else in the constitution is it made clear whether the enumerated powers are a mere sampling of the federal government's authorities or an exhaustive list of them. So the Tenth Amendment is broadly understood to have codified the doctrine of enumerated powers—that is, the idea expressed by Madison in Federalist 45, that the enumerated powers are in fact meant to be taken as an exhaustive list.

That's why the Tenth Amendment was included in the Bill of Rights, as is quite clear from the historical record of the drafting and ratifying process. (This is not controversial, as I imagine you know.) But the meaning of the Tenth Amendment and the practical extent of the enumerated powers doctrine was nevertheless a muddle from the start, owing partly to the tension with the necessary-and-proper clause.

No one was at all sure what it took to justify a specific federal action under one of the enumerated powers. The issuance of passports is not on the list of enumerated powers, but the wartime Department of Foreign Affairs (renamed the Department of State in September 1789) was carried over into the constitutional era, issuing passports all the while. The power to annex territory—also absent from the list; but Jefferson decided that he could purchase Florida and Louisiana. And so on and so forth.

Still, there were indeed rare moments in the the nineteenth century when judges invoked the Tenth to nullify acts of Congress, as in Collector v. Day, 78 U.S. (11 Wall.) 113 (1871), which stood until 1939. It is easy to imagine that the amendment was rarely invoked before the progressive era mostly because the doctrine of enumerated powers was firmly established; the powers of the federal government were, in actual practice, vastly less in those days. The Tenth Amendment has been even more rarely invoked since the early decades of the twentieth century because progressive judges completely eviscerated it.

The Tenth Amendment means essentially nothing today, you're right, but that has not always been the case, and it's not because the words themselves are meaningless.