served to gradually escalate the power of Washington, D.C., and diminish the independent authority exercised by the states.
Defenders of this increasingly unbalanced dual federalism are emboldened by the so-called supremacy clause in Article 6 of the Constitution, which reads: Politicians tend to be quite selective when it comes to the application of the
10th Amendment, as they are with so many other elements of the Constitution. For the last 60 years or so, opposition to federal power and support for states’ rights was largely concentrated among those attempting to reject racial desegregation in the South. But now we are beginning to witness the reverse. With the federal government weeks away from being controlled entirely by Republicans, more and more Democrats are adopting the states’ rights position on so-called sanctuary cities that provide a safe harbor for illegal immigrants.
The 10th Amendment is also undergoing a serious test on the issue of
marijuana. The drug is illegal under federal law, but nine states have legalized it for both recreational use and sale (and several other states have voted to legalize recreational and/or medical use). Federal and state laws will at some point — likely in the near future — need to be reconciled.
Gay marriage was an issue thought by many to be the dominion of individual states but the debate was effectively ended in 2015, when the Supreme Court ruled it a constitutional right for all Americans. With the change of administrations and the Court now likely to be dominated by strict constructionists and originalists in the tradition of the late Justice Antonin Scalia, it is possible that this issue will be revisited in arguments about both dual federalism and the proper role of the federal judiciary.
To be sure, a genuine revival of federalism will hardly happen overnight. It may not be at the forefront of people’s thoughts with the changing of the guard in our nation’s capital, but these issues regarding sanctuary cities, marijuana and gay marriage have, at a minimum, put the proper application of the 10th Amendment back in the discussion for the months and years ahead.
But when it comes to the amendment that has been the most ignored, misinterpreted or abused, few could argue against the 10th Amendment.