1. The Incredible Shrinking
10th Amendment

2. The 10th Amendment
“All power not delegated to the national government, nor prohibited to the states, is reserved to the states and the people.”

3. What it means… “Delegated to the national government.”
Specifically enumerated in the Constitution as a power of the National Government.
Example – To coin money.
“Prohibited to the states.”
States are specifically prohibited by the Constitution from doing these things.
Example – Enter into foreign treaties.

4. “Reserved to the states and the people.”
Things that the states are allowed to do.
Examples – licensing, commerce within the state, education, helmet laws, fireworks, tattoos.
Reserved to the people.
Things the people are allowed to do.
Examples – freedom of speech, press, and assembly.

5. Article I, Section 8: The “Elastic Clause”
The Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

6. The “Elastic Clause”
Stretches the Constitution to give the national government control over new things.
The national government has slowly stretched its authority over the course of history.

7. Article I, Section 8, Clause 3. (The Commerce Clause)
Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

8. A caveat… This does NOT mean that Congress can do whatever it wants.
Anything Congress does has to be connected or linked to an enumerated power.

9. McCulloch v. Maryland (1819)
The national government has the authority to create a bank.
States may not tax the bank.
Shrinks the states’ rights to tax business within their borders.

10. Judge Marshall Says:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the constitution, are constitutional.”
“The power to tax is the power to destroy.”

11. Gibbons v. Ogden (1824)
Interstate commerce is “all intercourse between states.”
“Intercourse” obviously means trade.
Gibbons v. Ogden stretches trade to also mean movement of people.

12. Dred Scott v. Stanford (1857)
Congress has no power to prohibit slavery in the territories.
Enlarges the 10th amendment at the exepsnse of national power.

13. The Great Depression
Despite several challenges, the court began in 1937 to uphold major New Deal measures giving the national government broad, sweeping powers.
The court abandoned its effort to maintain a rigid boundary between national and state power.

14. Heart of Atlanta Motel v. US (1964)
Court upheld the Civil Rights Act of 1964 using the Commerce Clause.
“Heart of Atlanta” was a whites-only motel.
Court ruled that they had to accept black customers because they were involved in interstate commerce.
People could, reasonably, come from out of state to stay at the motel.
The 10th Amendment was thought to be dead.

15. US V. Lopez (1994)
Does Congress have the right to legislate, under the Commerce Clause, on the issue of activities taking place at school?