The 10th Amendment Is a Judgment About Who You Trust

There is a phrase that gets thrown around so often in conservative circles that most people have stopped thinking about what it actually means: "states' rights." It is almost always paired with the 10th Amendment, as if the two were synonyms. They are not. And the difference between them is the difference between liberty and a new kind of tyranny-one that simply swaps the federal boot for a state one.

Let me read you the amendment itself. Slowly. Because the last four words are the ones that get conveniently edited out of every stump speech and op-ed. 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. Those four words-"or to the people"-are the most underappreciated clause in the entire Bill of Rights. They are not a throwaway line. They are the whole point. The 10th Amendment was never designed to be a blank check for state legislatures. It was designed to be a reminder of who actually owns the government-and it isn't the governor, the legislature, or the federal bureaucracy. It's you.

The Original Understanding: Not What You've Been Taught

The 10th Amendment was added to the Constitution to make explicit what was already implicit in the structure of the document. The federal government was to be a government of enumerated powers only. If a power wasn't listed in Article I, Section 8, Congress didn't have it. Period. The 10th was a truism, as James Madison put it-a simple statement that the presumption of authority rests with the states and the people, not with Washington.

But here is where the modern "states' rights" crowd gets it wrong. The amendment does not say "reserved exclusively to the states." It says "reserved to the States respectively, or to the people." That little conjunction "or" is doing serious work. It means that some powers go to the states, and some powers go directly to the people-and the amendment does not specify which is which in every case. That ambiguity is intentional. The Founders understood that the people are not merely subjects of state governments. They are sovereign individuals who have delegated a limited portion of their authority to the states, just as they have delegated a limited portion to the federal government.

Thomas Sowell's constrained vision applies here perfectly. The Founders had no illusion that state governments were naturally benign. They had lived under the heavy hand of colonial legislatures. They knew that a petty tyrant in a state capitol could be just as oppressive as one in a distant capital. That is why the Constitution gave the federal government certain powers to protect individuals against state overreach-the Privileges and Immunities Clause, the Guarantee Clause, and later the 14th Amendment. The 10th does not undo any of that. It reinforces the fundamental truth that all political power in America is delegated by the people, and it can be revoked from any level of government that abuses it.

The Compound Republic: A Double Security

This brings us to the forgotten insight of the Founders-the idea of the compound republic, articulated most clearly by James Madison in Federalist No. 51. The division of power between state and federal governments was not designed merely to keep the central authority in check. It was designed to give the people two shields against oppression. If the federal government becomes tyrannical, the states can resist. But if a state becomes tyrannical, the people can appeal to the federal government for protection. That is why the Bill of Rights was eventually incorporated against the states through the 14th Amendment. That is why the Civil Rights Act of 1964 was necessary to override Jim Crow laws enacted under the banner of "states' rights."

The people who invoke the 10th Amendment today to defend state authority over everything from vaccine mandates to school curricula to occupational licensing are, ironically, abandoning that double security. They are treating the state as the final authority, rather than a limited one. They have swapped federal supremacy for state supremacy, but they have not moved an inch closer to individual liberty. The judgment they are making-that the state is a safer repository of power than the federal government-is a judgment unsupported by the Constitution's text and by history.

Where the Rubber Meets the Road: Examples That Cut Both Ways

Let me give you three concrete examples-each one of which reveals the inconsistency of the modern states' rights doctrine.

Occupational licensing. Right now, across the United States, states require licenses for hundreds of jobs-everything from florists to hair braiders to interior designers. These laws are almost always passed at the behest of established industry players who want to keep out competition. They are a textbook example of what Milton Friedman called occupational licensure as a tool of monopoly. They hurt poor people, minorities, and newcomers the most. And they are defended under the 10th Amendment's grant of police powers to the states.

But ask yourself: does a state have the right to prevent a single mother from braiding hair without a government permit? The 10th says the power is reserved to the states or to the people. Which is it here? The people have a natural right to earn an honest living. The state's interest in "safety" is often a pretext. The proper reading of the 10th is that the power to work belongs to the people unless the state can show a compelling, non-pretextual reason to restrict it. Most licensing laws cannot meet that standard. Yet the "states' rights" crowd rarely objects.

School choice. The battle over education is another revealing case. Many states have constitutions or laws that effectively create a government monopoly on K-12 schooling. Parents who want to use their tax dollars for private schools, religious schools, or homeschooling face fierce opposition-often from Republicans who otherwise claim to love the 10th Amendment. But if the 10th means anything, it means that the people have reserved to themselves the right to educate their children as they see fit. The state's interest in education does not give it a monopoly. The 10th reserves that power or to the people-and parents are the people.

Eminent domain abuse. Remember the Kelo v. City of New London case? The Supreme Court ruled that a city could seize private property and hand it to a private developer for economic development. That was a state action, done under state law, defended as a legitimate exercise of state power. The 10th Amendment did not protect those homeowners. Why? Because the people had not reserved that power to themselves-the state had grabbed it. And the conservatives who normally love the 10th were suddenly fine with the Court overturning it via a federal constitutional ruling. The inconsistency is blinding.

The Principle Must Be Consistent

If you are going to defend the 10th Amendment, you must defend it for the people, not just for the state governments you happen to like. That means opposing state overreach as vigorously as you oppose federal overreach. It means recognizing that the "or to the people" clause is not an afterthought-it is the foundation.

Friedrich Hayek warned us about the knowledge problem: no central planner can gather the dispersed knowledge of a free society. But that applies just as much to a state planner in Sacramento or Albany as it does to a planner in Washington, D.C. The 10th Amendment reserves to the people the right to know their own circumstances and make their own decisions. That is the heart of liberty.

Antonin Scalia, whom I have often cited on originalism, would remind us that the Constitution's meaning is fixed at ratification. And at ratification, the 10th Amendment was understood to be a rule of construction that limited the federal government and affirmed the residual sovereignty of the people. It did not create a new set of state powers. It simply stated where the presumptions lie. And the presumption is always with the individual, not the state.

Conclusion: Rescuing the 10th from Its Defenders

The 10th Amendment needs to be rescued from its self-proclaimed defenders. It is not a tool for state legislatures to carve out fiefdoms or impose their will on unwilling citizens. It is a constitutional reminder that you are sovereign. The powers not delegated to the United States are reserved first to the states, yes-but also, and finally, to the people. And the people can take those powers back from any government-state or federal-that forgets its place.

The next time you hear a politician wave the 10th Amendment, ask him: whose rights are you protecting? Yours, or the people's? If he can't answer, you know the amendment is being used as a prop, not a principle. The amendment was written to protect you from both of your masters. Don't let them use it to become your third.

The federal government is not the only threat to your liberty. The state government can be just as dangerous. And the only proper response is to insist that the 10th Amendment means exactly what it says: the power is reserved to the states or to the people. When in doubt, it belongs to the people. That is the original understanding. That is the conservative principle. And that is the truth we need to rediscover.

Making the right judgment about where power belongs requires us to look past the comfortable rhetoric and ask hard questions about actual outcomes. The 10th Amendment is not a slogan. It is a test of whether you truly trust the people to govern themselves, or whether you just want to swap one set of rulers for another. The answer, for anyone who believes in liberty, must be clear: the people come first.