Amendment 10 — State Police Power And Tenth Amendment Jurisprudence
Primary source
Commentary below is sourced from the Cornell Legal Information Institute (LII) mirror of the U.S. Constitution Annotated, used per LII's robots.txt with 10-second crawl-delay compliance.
Commentary
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 the first few decades of the twentieth century, the Supreme Court relied on the Tenth Amendment —alongside a narrow (by modern standards) understanding of the Interstate Commerce Clause[1](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn1amd10 " See . ") —to invalidate a variety of federal laws regulating economic activity because they invaded the states’ reserved police powers to regulate public welfare and morality. Exemplary of this line of cases is Hammer v. Dagenhart,[2](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn2amd10 " 247 U.S. 251 (1918), overruled by United States v. Darby, 312 U.S. 100 (1941). ") which invalidated a federal law that prohibited the transportation in interstate commerce of goods produced through child labor.[3](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn3amd10 " Id. at 268 n.1. ") Invoking the Tenth Amendment , the Court concluded that the Child Labor Law was an unwarranted invasion of the states’ reserved powers,[4](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn4amd10 " Id. at 274. ") reasoning:
In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. . . . To sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character . . . .[5](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn5amd10 " Id. at 275–76 (citations omitted). ")
Following similar logic, the Court in the 1920s and 1930s invoked the Tenth Amendment to invalidate a series of congressional economic regulations as invasive of state police powers, including: taxes on the sale of grain futures in markets that violated federal regulations;[6](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn6amd10 " Hill v. Wallace, 259 U.S. 44 (1922); see also Trusler v. Crooks, 269 U.S. 475 (1926). ") taxes on the profits of factories in which child labor was used;[7](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn7amd10 " Child Labor Tax Case, 259 U.S. 20, 26, 38 (1922). ") regulations and taxes on the production and manufacture of coal;[8](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn8amd10 " Carter v. Carter Coal Co., 298 U.S. 238, 294 (1936). ") regulations of state building and loan associations;[9](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn9amd10 " Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 337 (1935). ") and regulations and taxes on agricultural production.[10](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn10amd10 " United States v. Butler, 297 U.S. 1, 68 (1936) ( “The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.” ) ") In A.L.A. Schechter Poultry Corp. v. United States,[11](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn11amd10 " 295 U.S. 495 (1935). ") the Court, after holding that the commerce power did not extend to intrastate sales of poultry, relied on the Tenth Amendment to rebut the argument that the existence of an economic emergency (the Great Depression) could justify the legislation.[12](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn12amd10 " Id. at 528–29 ( “Extraordinary conditions do not create or enlarge constitutional power . . . . Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment.” ). ")
Even during this period, however, not all federal statutes relating to objectives that could be characterized as traditional state responsibilities were held invalid. For example, in Hamilton v. Kentucky Distilleries Co.,[13](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn13amd10 " 251 U.S. 146 (1919). ") a unanimous Court upheld a wartime prohibition on distilled spirits with reasoning reminiscent of McCulloch:
That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment , is true. But it is nonetheless true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power.[14](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn14amd10 " Id. at 156 (citations omitted) (Brandeis, J.). ")
In a series of cases in apparent tension with Hammer v. Dagenhart, the Court in this period sustained federal laws penalizing the interstate transportation of lottery tickets;[15](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn15amd10 " Champion v. Ames, 188 U.S. 321 (1903); see also United States v. Ferger, 250 U.S. 199 (1919) (upholding law punishing the forgery of bills of lading in interstate and foreign commerce). ") of women for immoral purposes;[16](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn16amd10 " Hoke v. United States, 227 U.S. 308 (1913). ") of stolen automobiles;[17](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn17amd10 " Brooks v. United States, 267 U.S. 432 (1925). ") and of tick-infected cattle.[18](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn18amd10 " Thornton v. United States, 271 U.S. 414 (1926). ") In a case upholding a federal law that prohibited the killing or selling of migratory birds, enacted as implementing legislation for a treaty between the United States and Great Britain, Justice Oliver Wendell Holmes rejected the notion that “invisible radiation from the general terms of the Tenth Amendment ” invalidated the statute.[19](https://www.law.cornell.edu/constitution-conan/amendment-10/state-police-power-and-tenth-amendment-jurisprudence#fn19amd10 " Missouri v. Holland, 252 U.S. 416, 434 (1920). ")
Footnotes
1
2
247 U.S. 251 (1918) , overruled by United States v. Darby, 312 U.S. 100 (1941) .
3
4
5
Id. at 275–76 (citations omitted).
6
Hill v. Wallace, 259 U.S. 44 (1922) ; see also Trusler v. Crooks, 269 U.S. 475 (1926) .
7
Child Labor Tax Case, 259 U.S. 20 , 26, 38 (1922).
8
Carter v. Carter Coal Co., 298 U.S. 238 , 294 (1936).
9
Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315 , 337 (1935).
10
United States v. Butler, 297 U.S. 1 , 68 (1936) ( “The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.” )
11
12
Id. at 528–29 ( “Extraordinary conditions do not create or enlarge constitutional power . . . . Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment .” ).
13
14
Id. at 156 (citations omitted) (Brandeis, J.).
15
Champion v. Ames, 188 U.S. 321 (1903) ; see also United States v. Ferger, 250 U.S. 199 (1919) (upholding law punishing the forgery of bills of lading in interstate and foreign commerce).
16
Hoke v. United States, 227 U.S. 308 (1913) .
17
Brooks v. United States, 267 U.S. 432 (1925) .
18
Thornton v. United States, [271 U.S. 414 (1926)](ht
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