The 10th and 14th Amendments in relation to federal and state powers

What we're going to do in this video is talk a little bit more about federal powers versus state powers. As we've mentioned in other videos, this is a very relevant topic because even today you'll have Supreme Court decisions being decided based on citing different parts of the Constitution or various amendments that seem to give one power more to the federal government or to the state government.

Another important appreciation is the balance of power or the shifts of power between federal and state. It has historically changed over time, so it isn't this fixed thing. In a previous video, we talked about the enumerated powers that the Constitution gives the federal government. In particular, we have talked about the commerce clause that allows the federal government to regulate commerce among the several states, which has turned out to be a much farther-reaching power than maybe the drafters of the Constitution intended.

Then the thing that really gives power to even the enumerated powers is the necessary and proper clause, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. This is what we talk about. This necessary and proper clause creates a lot of implied powers, so you can imagine this isn't— the necessary and proper clause is not something that made the Anti-Federalists very happy. They were worried about kind of power grabs by the federal government.

Shortly after you have the ratification of the Constitution, you have the ratification of the Bill of Rights, which are the first ten amendments. The ninth and tenth amendments in particular are Anti-Federalists' attempt to limit the federal government's power. The ninth amendment says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Even more important is the tenth amendment, and this is really speaking to federal versus state powers. The powers not delegated to the United States by the Constitution (so not delegated to the federal government nor prohibited by it to the states) are reserved to the states respectively or to the people. You could view this as reserved powers for the states. It's an Anti-Federalist attempt to say, "Hey, you know, the federal government can't just do whatever it wants." It's trying to put a little bit of a check on the necessary and proper clause.

So if you fast forward to the period right after the Civil War, you have the 13th amendment, which bans slavery. Then you have the 14th amendment, which is trying to bring slaves into society and allow them to be citizens—not just them, but their descendants. This is in direct contradiction of the 1857 Dred Scott decision that we'll talk about in other videos, where the U.S. Supreme Court ruled that slaves and their descendants are not considered American citizens and so they don't have a right to petition the government.

But the 14th amendment says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law. This is actually putting constraints on states. As we'll see, even though this is in the context of the post-Civil War era, because it's putting constraints on states, this is one of the amendments that's often cited that puts more power in the hands of the federal government.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Since the time that the 14th amendment was adopted, this notion of equal protection under the law—that no state can enforce laws which shall abridge the privileges or immunities of citizens—has been very relevant in a whole series of cases in modern times. A lot of cases around discrimination: if there's a right that is given in one state, do the other states have to adopt it? You can look around right now; there's significant social debates about things like same-sex marriage or things like abortion, and those cases often center around the 14th amendment.