Notre Dame Law School
The Tenth Amendment is caught in a crossfire hurricane. From one direction, it is dismissed as "but a truism"' with no significant constitutional function. From another direction, its unassuming language- "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" 2-has inspired Byzantine doctrines concerning such matters as federal commandeering of state institutions,3 conditions on federal spending programs implemented by states,4 and federal regulation of state governmental institutions. 5 The Tenth Amendment thus appears to be either the constitutional equivalent of a skin tag or a tumorous font of emanations and penumbras that would make even William 0. Douglas wince.
A Truism with Attitude: The Tenth Amendment in Constitutional Context,
Notre Dame Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1045