[Congressional Record Volume 141, Number 137 (Wednesday, September 6, 1995)]
[Extensions of Remarks]
[Pages E1707-E1708]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          THE TENTH AMENDMENT

                                 ______


                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                      Wednesday, September 6, 1995
  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, August 16, 1995, into the Congressional Record.
                          The Tenth Amendment

       This year has witnessed a remarkable revival of the Tenth 
     Amendment to the U.S. Constitution. It was until recently 
     perhaps the least known, and least understood, of the ten 
     amendments contained in the Bill of Rights, but now it comes 
     up regularly in my meetings with constituents and public 
     officials. It is invoked most commonly in support of 
     arguments to protect states' rights and return more power 
     from the federal government to the states.
       The Tenth Amendment to the Constitution 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.'' What 
     precisely the amendment means has been the subject of debate 
     for over two hundred years.


                         historical background

       The Founding Fathers were divided on the significance of 
     the Tenth Amendment. The delegates to the Constitutional 
     Convention did not include such language in the original 
     Constitution because they thought it was not necessary. 
     According to this view, the Constitution gave the new federal 
     government specific powers, such as the powers to tax and 
     regulate interstate commerce; and powers not granted to the 
     federal government could not be exercised by it, and were 
     therefore reserved to the states.
       But fear of central authority was widespread and there 
     emerged strong support, during the ratification process, for 
     an explicit guarantee that the states should retain control 
     over their internal affairs. Hence, the Tenth Amendment was 
     included in the Bill of Rights. Some Founding Fathers, such 
     as James Madison, viewed the Tenth Amendment as merely 
     rhetorical--a provision intended to allay public fears about 
     new federal powers, without limiting those powers in any 
     substantive way. Others, like Thomas Jefferson and other 
     states' rights advocates, viewed it as the bulwark against 
     abuse of federal powers.
       The Supreme Court has over the years changed its approach 
     to the Tenth Amendment. Early on the Court paid little heed 
     to it. Subsequent Courts, however, invoked the Tenth 
     Amendment to curtail powers expressly granted to Congress, 
     particularly the powers to tax and regulate interstate 
     commerce. But then the tide turned again. During the Great 
     Depression, in the face of mounting public opposition and a 
     hostile President Roosevelt, the Court retreated, affirming 
     the Social Security Act and other New Deal laws. The Court 
     thereafter tended to defer to Congress in the exercise of its 
     constitutional powers.


                            revived interest

       The Tenth Amendment has made a striking comeback in the 
     last year. The Supreme Court invoked the amendment in the 
     course of striking down a federal law banning gun possession 
     near a school on the ground that Congress had overstepped its 
     constitutional authority to regulate interstate commerce. 
     Members of Congress have also acted in the name of the Tenth 
     Amendment to rein in federal powers and return more 
     responsibilities to the states.

[[Page E 1708]]

       There are several factors driving the renewed interest in 
     the Tenth Amendment. First is the general hostility to the 
     federal government; there is a sense that government is too 
     intrusive in peoples' lives and too disruptive of business. 
     Second is the view that problems can best be handled by those 
     closest to them, namely state and local governments and 
     individual citizens. Third is the federal budget deficit, 
     which requires that more responsibilities be shifted to 
     states as cost-saving measure.


                           Balanced approach

       I am generally supportive of efforts to return power to the 
     states. The federal government has become too large, 
     bureaucratic and intrusive, and needs to be downsized. I have 
     supported measures to cut the federal workforce, turn more 
     responsibilities over to the states, and reduce government 
     spending.
       However, I am uncomfortable with the proposition that the 
     Tenth Amendment forces us to take such actions. The Tenth 
     Amendment raises the question of how powers should be 
     distributed in our system of government, without really 
     answering that question. The Constitution has to be read as a 
     whole, with consideration given to other clauses which 
     provide large powers to the federal government. The 
     Constitution is ambiguous on the question of where federal 
     powers end, such as the regulation of interstate commerce, 
     and where state powers begin. We have never been able to 
     resolve how much power should be kept at the center of the 
     federal government and how much could be left to the states. 
     That was a tough call in 1789 and it is a tough call in 1995.
       Americans have always been hesitant to lodge too much power 
     in the central government. During the first 150 years of our 
     government, states had the dominant role. But with the onset 
     of the Great Depression, power shifted dramatically to 
     Washington. In more recent years the tide has been flowing 
     toward the states, slowly at first but now more strongly. 
     Today what we have is a period of competitive federalism, 
     which means that the federal government and the states are 
     competing with each other for leadership in domestic policy.
       I am not sure that any level of government is necessarily 
     wiser, more efficient or more frugal than other levels, nor 
     am I sure that people know more about what happens at the 
     state level than the federal level. It is also unclear 
     whether giving more power to the states is the best form of 
     moving power away from Washington. Why not give power and 
     money directly to the counties or the cities? Why not, as we 
     do with social Security, provide assistance or vouchers 
     directly to individuals, bypassing both the state and the 
     local governments?
       Americans do not like big centralized bureaucracies. That's 
     a healthy instinct. The task is to go beyond it and try to 
     determine which level of government can best handle a certain 
     function. As the Congress looks at shifting more 
     responsibility for welfare, Medicaid, transportation, job 
     training, and the environment to the states, we have to be 
     careful that the states have the financial and managerial 
     resources to run the programs. We also have to be careful not 
     to dump too many burdens on states in an extremely brief 
     period of time. The task is to turn a pragmatic eye toward 
     what has a chance of working. If we can do that, the nation 
     will be well served.
     

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