States to Feds: Step Off

By Ashby Jones

We had no idea: states across the land are assembling their legislatures and passing these resolutions asserting their sovereignty. It’s all part of this push, it seems, to remind whomever — citizens, the federal government — that the 9th and 10th amendments to the Constitution imbue the states with certain powers.
The number of states deciding that these resolutions are worth doing are growing. South Carolina passed one this week. A Kansas resolution affirming the state’s 10th amendment rights was on Thursday sent to the state Senate for a full vote. Late last month, the Alabama legislature sent up a resolution essentially reaffirming the 10th amendment. For a full list of what states have done on this front, click here, for information from the Tenth Amendment center; click here for
By way of quick refresher, the 10th Amendment reads:

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.

On its face, it certainly sounds like an amendment that’s worth being mindful of (which one isn’t?). Thing is, however, that any new application or enforcement of the 10th amendment is going to require some new, perhaps forward-thinking litigation, and a Supreme Court that decides it’s high time to breathe new life into the largely moribund amendment.
Last fall, we cited Radley Balko, writing in Reason, who cited this passage from Ken at Popehat:
“The Tenth Amendment is close to a dead letter in American jurisprudence; the unrestrained growth of the federal government reflects that modern courts have refused to find that it acts as any sort of brake on federal power.”
As we wrote, it would take an enormously courageous (or ill-advised, depending on your perspective) federal judge to strike down federal legislation on Tenth amendment grounds. But this is a court that decided to pick up the Second amendment and give it another look. So who knows?