The Tenth Amendment has now become a sword for those who wish to shrink the federal government. Many, especially in the Tea Party, have long argued that T.V.A , Wall Street regulation, banking and environmental regulations, Social Security and Medicare, student loans, and minimum wage laws are all unconstitutional because our Constitution does not expressly delegate to the federal government the power to make laws about those specific subjects.
Enter now the Tenthers, who make that very argument, to wit, that the Tenth Amendment of United States Constitution limits the federal government to those powers expressly delegated to it in the Constitution. The following analysis should prove that the Tenthers, who want to apply a "horse and buggy" philosophy to the most complex and powerful society that the world has ever seen, are wrong by both common sense and history.
It is true that the Articles of Confederation limited the federal government's role to those powers "expressly delegated" by the articles. The articles went into effect in 1777, but our 1789 Constitution superseded them, featuring by 1791 a Tenth Amendment that omitted the word "expressly". Thus, the Tenth Amendment does not limit our federal government to the expressly delegated powers of making war, roads, stamps and coins, and mail deliveries. In fact, the limiting language of the articles was rejected at the 1789 Constitutional Convention in Philadelphia when the delegates tabled a motion to borrow the words "expressly delegated" from the articles and place them into the new Constitution.
So where does the federal government draw its power to do more than make war, money, roads, and stamps? It's very simple to answer that question, as the rarely quoted Article 1, Section 8 of the Constitution gives the federal government the power to do what is "necessary and proper" to promote the "general welfare and common defense" of the United States. This broad grant of power by the Framers to the new government marked a clear departure from the limited powers found in the Articles of Confederation and thereby laid the basis for the new federal government to pursue any legitimate end by any rational means. In other words, all those subject areas that I mentioned above, from Social Security to Wall Street, are the proper objects of any federal legislation rationally designed to promote the general welfare of the citizens of this country
Nor do the Tenthers' arguments have any purchase on history or judicial precedent, as Thomas Jefferson approved the Louisiana Acquisition of 1804, and Justice John Marshall the national bank in 1819, despite the lack of express powers in the Constitution to acquire additional land or charter a federal bank. Google up the case of McCullough v. Maryland and see the judicial interplay of the Tenth Amendment and the Necessary and Proper Clause in Article 1, Section 8.
Now the Tenth Amendment can bare federalist teeth in the proper context; for instance, the federal government may not commandeer state resources to bring either the state or private businesses into compliance with federal environmental standards. In sum, the Tenth Amendment should serve to protect and maintain the dual sovreignty that the Constitution envisions, but should not be the means to cripple the federal or state government while each functions in its proper capacity.
For an interesting exchange of ideas on the Tenth Amendment, go to YouTube and Google up Wolfe and Van Irion. There, you will find what we had to say in a debate at Cleveland State last July. Had he received the Republican nomination, I'm sure Van would not be running and hiding from debates like Chuck Fleischmann has been. Van Irion has left me some messages about his ongoing constitutional research, and I have actually made a few suggestions that might help his case. We are poles apart ideologically, but at least he has a well- formed belief system that he is willing to defend. Van Irion has said that had he won, we would have already had several debates. Enough said.