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.
It begs the question (in the original sense of the expression.) What are the powers "not delegated to the United States by the Constitution"? Without an answer to that question, the entire statement is completely meaningless. It's missing an input.
And so there we are again. Who gets to decide? If Congress passes it, they must think it's Constitutional, or at least they're willing to make the case or invent one. If the president signs it, ditto that. If the people elect and re-elect such people, they apparantly are not concerned. And so you're back to the SCOTUS, the last resort, from which there is no appeal.
So in effect, what the 10th amendment REALLY means is this:
Whatever powers the national government doesn't claim for itself, the states and the people can have.
In practice, that's exactly what it means. It's worthless. The 10th amendment was basically written by the antifederalists, who opposed the Constitution, or at best were resigned to it, but sought to make it more secure. But the 10th amendment isn't even on the level of duct tape. I don't fault them for trying. But the battle was already lost.
But Huck, there are powers granted the federal government in the U.S. Constitution. Therefore things not listed, are to remain with the states.
I get your argument amounting to a fate accompli as far as what has been passed and acquiesced to, but I don’t really agree that the tenth is toothless. It’s not been enforced, respected or whatever, that’s for sure.
Uh. The 18 powers enumerated in the Constitution. Read a little further.
Then why does Section II of the Articles of Confederation state, “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.”
Reads like the 10th Amendment, right?