Question

The 10th Amendment addresses the division of powers between the U.S. and the states. What issue(s) from the past or present can you think of that may cause states to clash with the U.S. Constitution?

A federal system has a number of advantages. A key one, as Supreme Court Justice Louis Brandeis noted in 1932, is that states can be “laboratories” of democracy. In particular, he argued, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”⁴⁷ Another advantage, as the Supreme Court argued in Bond v. United States (2011), is that “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”⁴⁸ Other advantages, as one law professor has pointed out, are that federalism can accommodate a diversity of preferences in a heterogeneous society, that the most appropriate level of government can be utilized for a particular purpose, and that the states can compete and their citizens can move to places that have an attractive particular mix of public policies.⁴⁹

Constitutional Distribution of Powers

The U.S. Constitution distributes power between the national and state governments. It grants and denies powers. In some cases, powers are granted exclusively to the national government and in other cases exclusively to the states. There are also instances where powers are granted to both the national and the state governments. The same can be said for denied powers. Some are denied to the national government, others are denied to the states, and some are denied to both.

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Division of Powers between National and State Governments

Figures 2.3 and 2.4 present a clear summary of the division of powers between the national and state governments. Although the division of powers may seem straightforward, these figures belie the true complexity of our federal system of government. It is complicated, and the meaning of each power has been subject to interpretation by the federal courts. If we examine four areas of the Constitution and the courts’ interpretations, we gain a much better understanding of American federalism. These four areas are the Necessary and Proper Clause versus the Tenth Amendment; the Interstate Commerce Clause; Equal Protection and Due Process Clause of the Fourteenth Amendment; and the power to tax and spend to promote the general welfare.

The “Necessary and Proper” Clause and the Tenth Amendment

Article 1, Section 8, paragraph 18 of the United States Constitution states that Congress shall have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This seems to grant considerable power to the national government. However, the Tenth Amendment states: “The powers not page 60 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.” This seems to grant most powers not expressly granted to the federal government to the states, or that they would remain with the people. The meanings of these two sections of the Constitution were the cause of conflict early in the history of the Republic.

Tenth Amendment

Amendment of the U.S. Constitution that delegates or reserves some powers to the state governments or to the people

Answer 1

The interstate commerce clause which gives federal government power to regulate interstate commerce between states and to regulate commerce between them is the bone of contention which is causing issues between federal government and different state governments since this clause is interfering with states power to make its own laws to trade with other states.

Every state is sovereign and independent which can causes issues of secede of states from the United States.

Most of the land is owned by federal government which also creates issue and will create issue in the future also since state governments cannot use that land for the commercial purpose, benefit and for increasing their revenues.

Cooperative federalism which gives power to federal government over the states.

Gun control, education are some other issues which causes and will cause issue due to intrusion of federal government right/laws and power over the rights of state governments.