That said, the world in which the 10th amendment is very strong and the fourteenth is weak is much worse for civil rights. Suddenly the states can declare official support for Christianity, ban dissenting speech, shut down newspapers they dislike, search you or even imprison you without a warrant, or quarter troops in your house.
(For example, see https://www.huffingtonpost.com/2011/06/08/congressman-bruce-... and https://www.huffingtonpost.com/2011/06/08/delta-troops-afgha... The Government should reimburse him, and try to negotiate the best rates from the Airlines. I'd be all for the Airlines offering a discount, but they shouldn't be forced to.)
The current system has some pros (which you enumerate), but also some massive cons in the form of high exit costs, since you're exiting the entire federal apparatus rather than the government of a single state.
Likewise, incorporation doctrine is derived from the constitution. So anything that is considered barred by incorporation is therefore "prohibited by it[the constitution] to the States".
It has, in the past, been called "a truism" by the courts, and that's not a totally unreasonable read. Still, there issue has come up in court from time to time, and the wikipedia page ( https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... ) lists some examples.
Generally, after ratification the 10th Amendment was treated as a truism: essentially a useless amendment that simply confirmed the federal system of government. The words of the man who drafted the amendment, and who opposed it's inclusion:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
For much of the 20th Century, the justification for most federal laws infringing on state activity has been the Commerce Clause, which was extremely broadly written.
Most recently, the 10th Amendment has been interpreted to mean the federal government cannot force the states to enforce federal laws (see, e.g., Printz and the recently decided Murphy).
Not really, however in Wickard the Supreme Court simply ignored the entire words written, any context, and any rational thought processes around the words written to come up with a massive expansion of federal power that basic renders the enumeration clause pointless, and granting the federal government almost unlimited authority over everything
>>>>[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Seems narrow and precise to me, how 9 supposedly intelligent people came away reading in to the passage "Yes Congress can regulate how much wheat a man grows on his own farm for his own consumption" defy's all logic and reason
This is actually a rather important principle, and most people don't realize how many federal laws that work at the state level use funding carrots rather than criminal-punishment sticks for enforcement. For instance, the penalty for not following the unpopular and eventually dismantled "No Child Left Behind Act" was that your state would not receive federal education funding.
> The Act required states to develop assessments in basic skills. To receive federal school funding, states had to give these assessments to all students at select grade levels.
What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example.
So the 10th says if it isn't mentioned it is a power that belongs to the people or the states. For example, weed isn't mentioned in the constitution so technically it's a 10th issue for states to decide - HOWEVER - this is thing called the commerce clause...
Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter. So it gets complicated. But... In the end, some states have legalized in the state in part referring to 10A, it's their right to do - but if you are in a "weed state" and light up at a DEA office - expect to be arrested and charged with a federal crime.
* The thing about commerce clause is that almost everything can move from state to state. So that's a little bit of an annoying topic depending on the issue and which side you're on. For example, I can manufacture a gun in my state that isn't legal in another state, commerce clause has been tried to limit 2A.
>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.
What, exactly, this means has been a matter of ongoing debate for much of the amendment's existence. Some of the more fervent states' rights advocates have considered it a hard check on the power of the federal government, while at other times it has been considered little more than a truism.
My own personal read on it is that it defines the nature of state and federal lawmaking power, from the perspective of the constitution. Federal law is strict. The constitution allows it certain specific powers and subjects it is allowed to govern, and it must stay within those. State laws, from a federal perspective, are permissive. The constitution bars certain powers from the states, but anything not banned they are allowed to regulate.
In practice, this means less than it might, because the constitution's powers allow the federal government a lot of room to regulate and govern. At the state level, incorporation doctrine also limits their powers a fair bit.
In terms of judicial history, the 10th is one of the less significant parts of the Bill of Rights, becoming an issue in court far less than, say, the First Amendment (freedom of speech/press/religion) or Fourth (limits to search and seizure/ warrant requirements). On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace).
It's a mess. It's probably the best mess they could put together - but it's still a mess.
