The Rehnquist Court’s Federalist Legacy & The Transformation of the Tenth Amendment

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Karen Ben-Moyal

Constitutional Law


The purpose of the 10th Amendment has been a controversial issue since the founding of America’s constitution. Of all the foundations implemented into the Bill of Rights and the Constitution since America’s founding, the issues which continue to surround the Tenth Amendment have stemmed from the conflicting interpretations of both the court and politicians at different points in time. In fact, they remain at the heart of the most controversial debates to date. Furthermore, the tenth amendment, which states, “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,”[1] is meant to protect each of these powers from both entities. Those powers not delegated are reserved. It says nothing about whether delegated powers are to be broadly or strictly construed. In retrospect, the most significant differences in constitutional law are a direct result of the U.S. Supreme Court’s revival of federalism as a constraint on federal power. The federalism decisions, which will be discussed in detail, are the product of the Rehnquist Court. With a majority comprised of five conservative SCOTUS justices under the leadership of William Rehnquist who were all deeply committed to protecting state rights from federal government invasion. Justices Scalia, Kennedy, Thomas, and O’Connor, were responsible for introducing the concept of “New Federalism,” which virtually affected every area of U.S law, both civil and criminal, which ultimately changed the course of history and the future of the Supreme Court. The Court’s rulings are also pledged with restoring what the founders had in mind when they composed the tenth amendment. Among them, to restore dual sovereignty between government entities, establish an effective and fair system of centralized power, and overall, protecting the virtues that come with the promise of individual liberty. Thus, the goal of this report is to address and evaluate past Supreme court cases and specific provisions that were both relevant to the reconstruction of the Tenth Amendment as a limit on the powers of Congress, and were resolved by the Rehnquist Court. It will also provide an analysis to express the data and briefings which are fundamental to each court case, and thus significant to the evolution of constitutional law. Another area that requires further analyzation concerns the doctrine of sovereign immunity. Therefore, an analysis over the significant role that the Rehnquist Court played in the expansion of sovereign immunity is essential to understanding this part of the discussion.

The Transformation of the Tenth Amendment Over Time

Throughout the course of American history, the Supreme Court has transitioned between two very different forms of federalism.  The details of these changes in interpretation throughout American history are worth noting. The first involves a somewhat nationalist view, or the belief that the tenth amendment is not a separate constraint on Congress, and that it is only a reminder that Congress may only legislate if it has authority under the Constitution. The second pertains to the “federalist” approach, or the conviction that the tenth amendment protects state sovereignty from federal intrusion.   In America’s first century of existence, the Court took the former approach. In the court case, Gibbons v. Ogden[2], for example, Chief Justice John Marshall rejected the perception that the scope of Congress’s powers had any limits under the Tenth Amendment because he held the strong belief that any exercise of constitutional enumerated authority was granted by the constitution unto congress to serve the purpose of expanding scope of Congress’s Commerce Clause. This vision last until 1890’s until 1937 when the Supreme Court shifted to the latter approach. During this time period, the Court placed great emphasis on the Tenth Amendment, redefining it as a limit on congressional power. An example of this was represented in the court case, Hammer v. Dagenhart,[3] when Congress passed a law forbidding the shipment of good in interstate commerce if those goods were manufactured by any form of child labor. The Supreme Court held that it violated the Tenth Amendment. From the late 1930s until the early 1990s, constitutional clauses related to federalism were greatly discounted due to the massive expansion of federal power enacted under Franklin D. Roosevelt and his “New Deal” Congress. Under the leadership of the late Chief Justice William Rehnquist, however, the meaning of the Tenth Amendment utterly transformed the way the Courts view the idea of federalism, creating a new form of this concept called “New Federalism.”  Further, the decisions made by the Rehnquist Court involving the Tenth Amendment not only strengthened the bond that coincide between two different entities of government, it also reinvigorated the concept of Federalism by achieving an even greater endeavor. It defied the majoritarian opinion of the elitists, essentially giving back what was lost by the states throughout time and history, gaining back the power to govern on their own terms. Thus, this was a victory for both the states and the people. Public trust in the government has since increased because the people being governed are lacking in fear of tyrannical overthrow by the national government.  As for the states, they were given back the powers by which they were originally intended to receive.  Three sets of doctrines were at the heart of some of the major decisions held by the Rehnquist Court. Taken all together, these three manifestations of constitutional law epitomize a Revolutionary departure from court decisions in prior years.  The following manifestations by the Rehnquist Court include themes which represent the court’s devotion to the preserving of states’ rights and importance of state autonomy: 1. Significant limitations placed on the scope of Congressional power under the Commerce Clause and under Section 5 of the Fourteenth Amendment. 2. The revival of the Tenth Amendment as a limit on federal power. 3. Finally, the court’s expansion of the sovereign immunity doctrine.

Limiting the Scope of the Commerce Power

Over the years, the Rehnquist Court handed down a succession of decisions which drew stable boundaries between the powers of the national and state governments.  In turn, the court was able to effectively keep tight rein on congressional power under the interstate commerce clause.

Gregory v. Ashcroft

Gregory v. Ashcroft,[4] was a case in which four Missouri state court judges challenged the provisions of the Missouri Constitution located in Article V, 26, which ensured a mandatory retirement age of 70 for most state judges. The court was then compelled to consider whether or not the mandatory retirement provision violates the federal Age Discrimination in Employment Act (“ADEA”)[5]. The Missouri judges further argued that the mandatory retirement provision violated the equal protection clause of the Fourteenth Amendment. This case was significant because of the fact that it signified one of the first indications of the resurrection of the Tenth Amendment. Another noteworthy point the Court added to its decision in this case stressed the importance of autonomous state governments.

United States v. Lopez

The court case, United States v. Lopez,[6] is considered one of the most important Supreme Court decisions that limited the power of Congress under the commerce clause. With respect to the defense of states’ rights, this case set a paramount precedent for the court’s future.  A 12th grade student brought a gun to school. The student was caught, charged, and convicted under the Gun Free School Zones Act of 1990, which stated that possession of a firearm within 1000 feet of a school zone is considered a federal crime. In court, the defendant argued that the act was an unconstitutional act of the Commerce Clause which exceeded the scope of Congress’s powers. Moreover, in U.S. v. Lopez, the Court expanded upon the theoretical reasoning previously applied to the case of Gregory v. Ashcroft. Moreover, it concocted a rule of disposition which limited the scope of Congress’s commerce power for the very first time since the New Deal. Justice Rehnquist delivered the opinion for the court’s decision by retracing fundamental principles. In his ruling, Rehnquist quoted James Madison’s vindication located within the Federalist Papers, he stated that “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties.”[7] Thus, the court held that, “Congress can regulate under the commerce clause only in three circumstances: 1) the channels of interstate commerce; 2) the instrumentalities of interstate commerce and persons or things in interstate commerce; and 3) activities that have a substantial effect on interstate commerce. The Court found that the federal law prohibiting guns near schools met none of these requirements and thus was unconstitutional.”[8] The same logic was applied to the Violence Against Women Act of 1994, (in the case of United States v. Morrison[9]), which Congress authorized under the pretense of the Commerce Act.

Cases such as Lopez and Morrison open the door to constitutional challenges to countless federal laws, especially those that regulate non-economic activities.

Narrowing the Scope of Congress’s Powers: Section Five of the Fourteenth Amendment

Another significant source of congressional power worth noting is section 5 of the Fourteenth Amendment, the Equal Protection and Due Process Clause, in particular. It establishes that Congress has the power to enforce its provisions. However, this power was significantly restricted in 1997, in the decision of a case called City of Boerne v. Flores[10] in which the Court ruled that Congress may not use its Section 5 powers for the expansion of the scope of rights or implement new ones.

City of Boerne v. Flores

In City of Boerne v. Flores, the Court declared the Religious Freedom Restoration Act unconstitutional because it sought to enhance protection of the free exercise of religion. The Court argued that the expansion of the scope of rights made it impermissible for the court’s authority to determine the content of religious freedoms. There is an issue here. The dramatic new limit on federal powers puts the constitutionality of many federal civil rights laws in doubt. Another problem that this ruling created was that it (almost) seems as if this case was the precursor to states’ rights beginning to infringe upon the powers of the federal government. You start to see drastic changes and major complications in later Supreme Court decisions. A major change in the way the court approaches future cases dealing with state governments and their newfound ability to avoid being sued, by almost any means by the national government, become apparent in later years. You begin to notice a pattern in cases such as Kimel v. Florida Board of Regents,[11] when the Court decided that state governments may not be sued for violating the Age Discrimination in Employment Act. Decisions such as these set the precedent that state governments cannot be sued when they violate federal law. The crucial question persists: Is this an instance in which the Rehnquist Court went too far in extending the power of the states?

Revival of the Tenth Amendment as a Limit on Congressional Power

Another aspect of the Rehnquist Court’s federalism revival has been its use of the Tenth Amendment as a limit on federal power. During this time, the Supreme Court held that the Tenth Amendment reserves a zone of activities for exclusive state control. Rehnquist’s first major triumph came in the 1976 case of National League of Cities v. Usery[12], which established a limit on the powers of Congress to interfere with such “traditional governmental functions.” Additionally, the Tenth Amendment also prevents the congress interference of certain (state) law making processes. In the next two decisions discussed, the Rehnquist Court revived the Tenth Amendment as a constraint on Congress’s authority.

New York v. United States

For the first time since the overruled case, National League of Cities[13], the decision held in New York v. United States[14], the Court invalidated a federal law as violating the Tenth Amendment. Moreover, the court held that, “While Congress can encourage states to dispose of waste, they do not have the authority to compel them to do so.”[15]   In New York v. United States, a federal law deemed the Low-Level Radioactive Waste Policy Amendments Act,[16] required states to provide for the safe disposal of radioactive wastes generated within their borders. The act also provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on radioactive wastes received from other states. Moreover, the act protected the claim that if states did not properly dispose of any wastes within their borders by January 1, 1996, they would essentially “take title,” or in essence take responsibility for all damages, thereby inserting them the obligation to become accountable for any future damages that may or may not occur, both indirectly or directly. Nonetheless, by a 6-3 margin, the Rehnquist Court held that the “take title” provision of the law unconstitutional because Congress imposing either option on the states would be considered impermissible and strictly off limits under the constitution. The Court contested this argument by which the defense stated, “that it was ‘clear’ because of the Tenth Amendment, that ‘the Federal Government may not compel the States to enact or administer a federal regulatory program.”[17]

Printz v. United States

Several years later, in Printz v. United State[18]s, the Court applied and extended New York v. United States. The significance of this case was that it further extended the limits on congressional power to use state officers directly. Moreover, Printz involved a more controversial challenge to the federal Brady Handgun Violence Prevention Act, which required that the “chief law enforcement officer” of each local jurisdiction conduct background checks before issuing permits for firearms.[19] The Court concluded that Congress violated the Tenth Amendment by compelling states to implement federal mandates.  This case was also significant because the majority opinion contained the revival of the term, “dual sovereignty,” [20] which was redeemed by Justice Scalia in order to explain the structure of American government.

The Expansion of Sovereign Immunity

Another indispensable change in the law from the Rehnquist Court has been the Supreme Court’s significant expansion and rejuvenation within the scope of the doctrine of state sovereign immunity from civil suits under the Eleventh Amendment.

Alden v. Maine

In Alden v. Maine[21], probation officers in the state of Maine sought compensation for their hours of overtime work. They argued overtime pay was required under the Federal Fair Labor Standards Act of 1938. The act permits state employees to sue in trials held by their own state courts. However, a Maine trial court dismissed their assertions on the grounds that sovereign immunity exists in this case. The Supreme Court later affirmed the decision and held that because of state sovereign immunity, a state government cannot be sued in state court without the consent of the state, even if the basis is off a federal claim. After a 5-4 decision, Justice Kennedy expressly defended sovereign immunity based on this assumption. Thus, the following explains the reasoning behind the court’s decision. Delivered by Kennedy for the majority opinion:

“The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal

 law. The States and their officers are bound by obligations imposed

 by the Constitution and by federal statutes that comport with the

 constitutional design. We are unwilling to assume the States will

 refuse to honor the Constitution or obey the binding laws of the

 United States. The good faith of the States thus provides an

 important assurance that “[t]his Constitution, and the Laws of the

 United States which shall be made in Pursuance thereof … shall be

 the supreme Law of the Land.” U.S. Const., Art. VI. (103)”[22]


In other words, the court held that the Federal Fair Labor Standards Act violates Maine’s sovereign immunity guaranteed under the Eleventh Amendment. Although this logic does not stem directly from a literal translation of the Eleventh Amendment, the grounds for this decision are well within the Constitutional structure that promotes the argument for a view of federalism that does not violate the common law principle that, “a sovereign may not be sued without its consent.”[23]

Gonzales v. Raich

Finally, in Gonzales v. Raich,[24] both principles of state sovereignty and of enumerated powers were ultimately tested in the court of law. At the time, California was one of nine states that legalized medical marijuana. Despite this fact, federal agents confiscated medicinal weed plants from the property of a California resident under the Compassionate Use Act.[25] Even if you don’t agree with Rehnquist’s opinion here, and as far as significance goes, this case was the one in which William Rehnquist’s no-nonsense character really made an impact on the perception of the chief justice. In Gonzales v. Raich, Rehnquist made a legend out of himself, for he was one of only three justices who were willing to stand up and defend his faithfulness and devotion for states’ rights, (even though the opinion went against the majority of the court). It is even likely that his decision in this case was highly unpopular among the majority of the people living in the United States of America at the time. The chief joined the dissenting opinion written by Justice Sandra Day O’Connor, which in reality, consisted of the most basic logical principles. They rebutted the claim that Congress cannot just decide to transform the noncommercial possession of homegrown marijuana, on the basis of nothing, not in the abstract nor the law, in attempts to classify it within the same category as “interstate commerce.” Finally, the court concluded that, “Congress has the power to prohibit the local cultivation and use of marijuana under the power of the commerce clause.”[26] Justices O’Connor, Rehnquist, and Thomas made five or six valid arguments when they dissented this decision. Among them, is that the decision would allow Congress to regulate intrastate activity without audits, so long as there is some indication of a legislative pattern, and if it appears that the regulating of intrastate activity is consistent with the interstate regulatory scheme. The last argument we shall discuss is notable because it uses the substantiated basis for stare decisis.  The dissenting opinion addressed the inconsistencies that come to light when comparing this Gonzales v. Raich with Lopez.  The Court said Lopez’s regulations were not commercial and that Congress should have just said that the crime was “transfer or possession of a firearm,” thus including some commercial activity and making it constitutional. However, this was not the case. Furthermore, The Court also warned that this was clear sign of possible federal tyranny in the distant or not so distant future. The dissenters suggested that if the Court always succumbs to Congress in this way, enumerated powers may eventually lose their substance and thus render the risk of total government takeover on the national scale.


Throughout America’s history, the Tenth Amendment has had an ever-changing effect on the way American citizens view their government. In contrast, it has also had a substantial effect on the way the government governs their people, and the ways they are allowed to govern their people.  Furthermore, this research paper sought to examine the nature of this transition, and dissect preceding Supreme Court cases and decisions in which the court had previously invoked the Tenth Amendment.  While there were negative connotations involved in the process, the benefits of this cultivation probably outweighed the bad things. The trust of the public is essential in effectively governing a Republic, and it would be scarce if Congress alone decided the boundaries on how to police the limits of its own power, especially because of the serious concerns held by the majority being governed. Further, the idea of “New Federalism” is not only beneficial to the order of American Constitutionalism, it creates a huge benefactor to both the people, and their government, because of the inevitable doubts that arise from the dangers of excessive control by the federal government. Thus, national powers are implicated by the specific issues that the Supreme Court’s federalism cases address. Whatever the perspective, it is generally agreeable that the Tenth Amendment coexists in our Constitution with some of the most important clauses ever enforced. These provisions are what make up the foundation of our nation’s unique constitution. Taking the position of safeguarding and reestablishing foundational principles that had been lost in history. These include the advancement of the concept of equality, the establishment of an effective line between the separation of powers, and overall, the court’s accomplishments in the narrowing of the scope by which congressional authority has the right to rule over the states.

List of Cases

  1. Gibbons v. Ogden: (1824)
  2. Hammer v. Dagenhart: (1937)
  3. National League of Cities v. Usery: 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245, (1976)
  4. Gregory v. Ashcroft: 501 US 452 (1991)
  5. New York v. United States: 505 U.S. 144 (1992)
  6. United States v. Lopez (1995)
  7. Seminole Tribe v. Florida (1996)
  8. Printz v. United States: 521 U.S. 898, (1997)
  9. City of Boerne v. Flores (1997)
  10. Alden v. Maine: 527 US 706 (1999)
  11. United States v. Morrison: (2000)
  12. Kimel Florida Board of Regents (2001)
  13. Gonzales v. Raich (2005)


Bibliography: List of Additional Sources Used to Complete Research

  1. Hensley, Thomas R., Kathleen Hale, and Carl Snook. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara: ABC-CLIO, 2006. Print.
  2. Carp, Robert A., and Ronald Stidham. “Annotated Constitution.” The Federal Courts. Fifth Edition ed. Washington, D.C.: CQ, 1985. 273. Print.
  3. Lash, Kurt T. “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment by Kurt T. Lash :: SSRN. Elsevier, 16 Nov. 2005. Web. 22 Nov. 2016. <;.
  4. Lemieux, Scott. “Law &Amp; Society Review.” Law &Amp; Society Review, vol. 43, no. 1, 2009, pp. 235–237.
  5. Parker, Christopher M. “Ideological Voting in Supreme Court Federalism Cases, 1953-2007.” The Justice System Journal, vol. 32, no. 2, 2011, pp. 206–234.
  6. Rogers, Henry Wade. “The Constitution and the New Federalism.” The North American Review, vol. 188, no. 634, 1908, pp. 321–335.
  7. Siegel, Jonathan R., and David L. Hudson. “Political Science Quarterly.” Political Science Quarterly, vol. 122, no. 4, 2007, pp. 688–689.
  8. Calabresi, Steven G. “Federalism and the Rehnquist Court: A Normative Defense.” The Annals of the American Academy of Political and Social Science, vol. 574, 2001, pp. 24–36.
  9. Choper, Jesse H., Richard H. Fallon, Jr., Yale Kamisar, Steven Shriffin, Michael C. Dorf, and Frederick Schauer. Constitutional Rights and Liberties: Cases, Comments, Questions. Twelfth ed. St. Paul, MN: West Group, 2001. Print.


[1] Carp, Robert A., and Ronald Stidham. “Annotated Constitution.” The Federal Courts. Fifth Edition ed. Washington, D.C.: CQ, 1985. 273. Print.

[2] Gibbons v. Ogden, 22 U.S. 1 (1824)

[3] Hammer v. Dagenhart, 247 U.S. 251 (1918)

[4] See Gregory v. Ashcroft,  501 U.S. 452 (1991).

[5] 29 U.S.C. §§ 621-634 (1982 & Supp.1987).

[6] United States v. Lopez, 514 US 549 (1995).

[7] See Federalist  Papers: The Federalist Papers. Chicago, IL: CALI ELangdell, n.d. Web.

[8] See:

[9] United States v. Morrison, 529 U.S. 598 (2000).

[10] City of Boerne v. Flores, 521 U.S. 507 (1997).

[11] See Kimel v.Florida Board of Regent, 528 US 62 (2000).

[12]  See National League of Cities v. Usery, 426 US 833 (1976).

[13] See National League of Cities v. Usery, 426 US 833 (1976).

[14] New York v. United States, 505 U.S. 144 (1992).

[15]   See cases New York v. United States & Printz v. United States (Court Rulings)

[16] Low Level Radioactive Waste Policy Act of 1980. In response to the complex disposal issue, Congress passed the Low Level Radioactive Waste Policy Act of 1980 (P.L. 96-573), which established that each state was responsible for disposing LLRW generated within its boundaries.


[18] Printz v. United States (95-1478), 521 U.S. 898 (1997).

[19] The Brady Handgun Violence Prevention Act (Pub.L. 103–159, 107 Stat. 1536, enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill,[1][2] is an Act of the United States Congress that mandated federal background checks on firearm purchasers in the United States, and imposed a five-day waiting period on purchases, until the NICS system was implemented in 1998.

[20] See– Dual Sovereignty Doctrine: maxim of law which allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.

[21] Alden v. Maine, 527 U.S. 706 (1999).

[22] Quote from the majority opinion delivered by Justice Kennedy of the Rehnquist Court in Alden v. Maine.

[23] Quote pulled from Chapter LIV. The Suability Of States. 611. A Sovereign State May Not Be Sued Without Its Consent.

[24] See Gonzalez v. Raich, 2005. 545 US 1 (2005).

[25] See 410 ILCS 130/) Compassionate Use of Medical Cannabis Pilot Program Act.

[26] Choper, Jesse H., Richard H. Fallon, Jr., Yale Kamisar, Steven Shriffin, Michael C. Dorf, and Frederick Schauer. Constitutional Rights and Liberties: Cases, Comments, Questions. Twelfth ed. St. Paul, MN: West Group, 2001. Print.

14 thoughts on “The Rehnquist Court’s Federalist Legacy & The Transformation of the Tenth Amendment

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