Protecting the People’s Power: A Case for the Court to Revisit the 10th Amendment
The Dobbs v. Jackson Women’s Health Organization (2022) (“Dobbs”) decision is indisputably one of the most impactful ones of the late Roberts court, overturning 50 years of precedent that enshrined the right to abortion. The decision was derived from Justice Samuel Alito’s opinion that, among other arguments, abortion is not guaranteed under the Equal Protections Clause of the 14th amendment because the right is not “deeply rooted in this Nation’s history and tradition,” a test he obtains from the Washington v. Glucksberg (1997) (“Glucksberg”) decision [1]. This argument is the subject of frequent debate, particularly on the question of whether abortion is “deeply rooted” and whether the Equal Protection Clause should derive its framework from this test.
Following this argument, Justice Alito implicitly employs the 10th Amendment to return the abortion question to the states. He articulates that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives” [2]. This part of the argument appears nearly a given — if abortion is not protected under the Equal Protection Clause of the Constitution, the question must return to the states, which act as the “people’s elected representatives.” The 10th Amendment, which states “[t]he 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,” supports this interpretation [3]. Thus, because the Federal Government does not have the right to overrule state authority on abortion, Alito implies it must be returned to the states. This redistribution of power is encouraged by the petitioners, who argue for the state of Mississippi and that the principle of Federalism requires the Supreme Court to permit each state to decide [4].
However, as this article will evaluate, Dobbs’ interpretation of the 10th Amendment, as well as interpretations in various other Federalism-related cases, does not account for a crucial implication of the Amendment: it provides power to the people in a more nuanced manner than current practice. As is commonly understood, the 10th Amendment restricts the Federal Government only to powers expressly granted by the Constitution, while it gives states the ‘police power,’ or authority, to make decisions for the public [5]. The specific language of the 10th Amendment, however, indicates that the Founders intended to extend unenumerated rights and powers differently. This article will focus on the phrase “or to the people,” which it understands to suggest that the rights of the people may be construed in contrast to the powers delegated to the states, creating an imbalance that the Court often solves too quickly in favor of states.
As legal scholars would enthusiastically agree, no words in the Constitution are rhetorical fillers — each represents a conscious choice by the Founders to outline a specific right or institution [6]. So, why these four? Perhaps the Founders anticipated our exact predicament — the Courts too quickly grant powers to the states as in Dobbs, without considering the second half of the Amendment. As this article will prove, modern jurisprudence largely ignores this nuance and reduces the 10th Amendment to solely legalize power deference to states. To accurately represent the unenumerated rights of the people, this article argues that the Court must establish a more clear difference between deferring powers to the states and deferring power to the people.
This article concludes that readings of the 10th Amendment must establish a more clear distinction between deference to states and a more nuanced decision to vest power directly with the people. Although the 10th Amendment has commonly been practiced as a justification for returning power to the states (as later cases will prove), the 14th Amendment is precedent that the practices and decisions made are not absolute — the Equal Protection Clause must still pass the “history and tradition” test, for example [7]. While offering a more clear idea of what this redefinition of the 10th Amendment could look like is beyond the scope of this essay, there are certainly instances in which alternative decisions can be made by the Court.
A clear distinction must be made between the rights of states and the people. In cases where the rights of the people, on issues related to privacy, are at stake, it may seem more rational that personal sexual and medical choices should be left up to the individual and their own police power than a state. In situations of interstate commerce or other policy expenditures, the 10th Amendment should be applied as it currently is interpreted to grant power to the states. However, it is unreasonable to suggest that the state of California, overseeing 40 million residents, should have the same decision making power about contraception use as Wyoming has over its trade with Montana [8].
Although intended to represent the will of the people as locally and clearly as possible, a distinction must be made between states and the people from a modern perspective. Despite its foundational mission to represent local interests, some State Senators, like those of California and Texas have constituencies of over 1 million people — far exceeding the population that lives in each Congressional district in both states [9]. Even in states in which State Senates and Assemblies have more localized representation, targeted gerrymandering ensures anti-competitiveness and prevents a reflection of voters’ choices. For example, in the 2022 State Assembly elections in Illinois, Republicans won a majority of the popular vote despite earning just over one in three seats in the body [10]. Similar examples can be found in Wisconsin and Pennsylvania in 2018 [11]. These examples reflect the sheer anti-competitiveness of state legislative maps which fail to truly represent their voters. Voter suppression tactics, along with the intervention of special interest groups, work to further nullify the direct connection between voter preference and the opinions and policy decisions made by their elected state representatives [12].
Finally, increased political polarization manifests through voters’ preferences on specific issues often failing to alter their representatives’ perspective. It is the nature of representative democracy that elected officials will not always represent the majority opinion held by their voters, instead concentrating around perspectives that are popular on their side of the aisle. Voters’ diverse viewpoints rarely completely align with their candidates’ policies, which is why voters are often forced to vote for policymakers they frequently disagree with. For example, conservative voters who may weigh tax and immigration policy as their most important issues may feel compelled to vote Republican even if they support paid family leave. Because the legislators closest to their beliefs hold entirely conservative views, their support for paid family leave is ignored, despite gaining support from over ⅘ of the population [13]. All of this is to say, as it seems the Founders predicted, state legislatures are not perfect representations of the will of the people, and are far from “the people’s elected representative” as Justice Alito idealizes.
Thus, it is crucial for a distinction to be established and a hierarchy of powers to be delineated, such that in a world in which the people have limited ability to change their representatives, states are not the sole arbiters of power when it comes to representing the people. However, the rise of states’ rights as a substitute for individual power vested in the people results in a national struggle between Federal and State authority — both institutions ostensibly determined by the people and dominated by special interests and legal technicalities in practice.
Historical context provides clear backing for the distinction made between the People and the States. In James Madison’s June 8, 1789 speech outlining a potential Bill of Rights to the Constitution, Madison explicitly delineates that “all power is originally vested, and consequently derived from, the people” [14]. Here, Madison argues that the states, as much as they may represent the people, do not hold the final say on power. Instead, their power is obtained by the people. It thus follows that, should states not effectively derive their power from the people (i.e. fail to represent their interests or decisions) that the people hold a more important place in the eyes of Madison.
In Federalist Papers no. 39, Madison further elaborates on this belief. When he writes: “the Constitution is to be founded on the assent and ratification of the people of America… it is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves,” he makes it clear that there is a chain of power in which Congress derives its power from the consent of the States and each state derives its authority from the “supreme” power of the people [15]. Madison chooses to place the people above the States, granting them unilateral power to grant authority and consent to both States, and by transitivity, the Federal government. Logically, it appears that the Courts are given clear instructions on which entity to defer towards. And more importantly, it follows that we must read the 10th Amendment as such. The people dictate the power of the states, while the states hold power over powers not expressly established in the Constitution.
In the 20th century, the Court began to embrace an interpretation of the 10th Amendment that nullified the distinction between states and people. In the United States v. Darby, 312 U.S. 100 (1941) (“Darby”), the Court evaluated interstate commerce, siding with the Federal government and overriding potential challenges on the basis of the 10th Amendment [16]. Justice Stone, delivering the majority opinion, refers to the 10th Amendment as a “truism,” suggesting it does not unveil new Constitutional protections that are not previously established [17]. Justice Stone believes that the Constitution already grants states legal authority when not given to the Constitution. This points to Article 1 Section 8 of the Constitution, which states that Congress has the 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” [18]. Seemingly, the Federal government is already curtailed in its power to overreach upon the states. Thus, Justice Stone referring to the 10th Amendment as a truism suggests he intends merely to focus on the deference to states within the 10th Amendment that is already established in the Constitution.
In similar cases, the Court further embraced a reading of the 10th Amendment that focused on states rights without a complete picture of the Amendment or Madison’s readings. In Hammer v. Dagenhart, 247 U.S. 251 (1918) (“Hammer”), the Court established that Congress did not have the power to regulate interstate commerce of goods produced by child labor [19]. This decision relied on the balance between Federal and State power. Writing for the majority, Justice William Day asserted: “the grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution” [20]. Although it is unlikely the rights of the people are explicitly necessary in Hammer due to the nature of the decision regulating interstate commerce, Day’s opinion establishes a precedent for the 10th Amendment that ignores the power of the people. He continues that “the power of the States over local matters may be eliminated… our system of government [is]... practically destroyed” [21]. Day is correct that the Federal Government’s authority in local matters must be curtailed as determined by the Constitution, but his decision to write that states hold “power… over local matters” provides an incomplete analysis of the Federalism debate.
The context of the Hammer decision reflects the Dobbs Court’s decision to side with states over the People. In Hammer, the Court overruled the Keating-Owen Act, a law that restricted interstate commerce when children were employed at factories producing goods [22]. Keating-Owen cited the inhumane conditions children were often subjected to, compelled to work in order to support their family and deprived of education due to a cycle of poverty [23]. The Court overruling this decision presents two key issues. First, it ignored that children cannot vote. States’ rights has been accepted as fundamental for so long because it assumes the people are able to compel their state government to change laws if they dislike them, yet when children are compelled to work to support themselves financially, they cannot vote to enact change in their state. Second, this decision ignores the compelling interest parents have in allowing their children to go through harsh conditions for a wage that can put food on the table. Typically, the Supreme Court assumes that states’ rights allows the people to enact change by simply replacing representatives who do not enact policies they agree with. However, Hammer presents another key example in which this assumption is flawed.
Where, then, will the people execute their power, if not through their easiest form of representation — their state legislatures? There are multiple opportunities here for the people to make individual decisions that are far more representative of their perspective. After the Dobbs decision, for example, some states have relied on the use of ballot referendums to accurately represent their voters’ perspectives on the right to abortion. While perhaps a far clearer representation of the people’s voice, states like Montana provide examples of cases where the state legislature blatantly ignores the choices made by voters, relying on the power vested in them by the 10th Amendment as a shield against truly listening to their voters [24].
Additionally, in many other power-sharing debates, states maintain the final say, while the Supreme Court steps in as an oversight tool to ensure that legislatures are implementing laws that reflect and express the perspective of their constituents. With the recent Loper Bright Enterprises v. Raimondo (2024) (“Loper”) decision overturning the Chevron Deference and providing the Court with increasing power to interpret specific law, the Court was willing to involve itself in specific cases when dealing with legislative authority [25]. Instead of returning power to state legislatures as a default, this essay’s reading of the 10th Amendment would require a more explicit delineation of what removing this power from Federal hands looks like. Ballot referendums and Court oversight are two of many examples of choices the Court could make.
One may now imagine scenarios in which the Dobbs decision returns power to individual voters through ballot referendums that truly reflect state-by-state policy. Additionally, due to the deeply personal nature of the decision, it is possible, although unlikely considering Justice Alito’s perspective, that the Court chooses to return this power directly to the 10th Amendment, as the 10th Amendment suggests in part.
Of course, such drastic changes in the Court’s interpretation of the 10th Amendment are certain to draw criticism from those who suggest the 10th Amendment has a more fixed interpretation or that it exists simply as a truism. While it is likely there are elements of historical context that speak to the necessity of the 10th Amendment giving power directly and uniquely to states, this article seeks to challenge the simplicity of 10th Amendment decisions. Just because powers are not expressly granted to an unrepresentative and gerrymandered Congress does not mean it should instantly go to an equally unrepresentative and gerrymandered state legislature. In a post Roe world, it is necessary to reignite conversations on Federalism, considering how state power has been overextended into the freedoms of the people that are so clearly given in the 9th and 10th Amendment. It is necessary, for the Courts and for scholars of the law, to reevaluate how simply we have understood the 10th Amendment for so long.
Footnotes
[1] Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), p. 2.
[2] Ibid., 6.
[3] The U.S. Constitution, Amend. X.
[4] Cornell Law School Legal Information Institute, “Dobbs v. Jackson Women's Health Organization (2022),” Accessed November 20, 2025, https://www\.law\.cornell.edu/wex/dobbs\_v.\_jackson\_women%27s\_health\_organization\_%282022%29#:\~:text=Mississippi%2C%20through%20Dobbs%2C%20argued%20that,grounded%20in%20the%20Fourteenth%20Amendment.
[5] Cornell Law School Legal Information Institute, “police powers,” Accessed November 20, 2025, https://www\.law\.cornell.edu/wex/police\_powers.
[6] Peter Beck, “The Parts We Skip: A Taxonomy of Constitutional Irrelevancy,” University of Minnesota Law School, p. 226, Accessed November 20, 2025, https://conservancy.umn.edu/server/api/core/bitstreams/d25416ea-bfaa-4553-b3cc-51b7e9078822/content.
[7] Dobbs (2022), p. 2.
[8] World Population Review, “California,” Accessed November 20, 2025, https://worldpopulationreview\.com/states/california.
[9] California State Senate, “FAQs,” Accessed November 20, 2025, https://www\.senate.ca.gov/citizens-guide/faqs#:\~:text=Each%20Senator%20represents%20approximately%20988%2C086%20Californians; Wikipedia, “Texas State Senate,” Accessed November 20, 2025, https://en.wikipedia.org/wiki/Texas\_Senate#Quorum-busting.
[10] Wikipedia, “2022 Illinois House of Representatives election,” Accessed November 20, 2025, https://en.wikipedia.org/wiki/2022\_Illinois\_House\_of\_Representatives\_election.
[11] Wikipedia, “2018 Pennsylvania House of Representatives election,” Accessed November 20, 2025, https://en.wikipedia.org/wiki/2018\_Pennsylvania\_House\_of\_Representatives\_election; Wikipedia, “2022 Wisconsin State Assembly election,” Accessed November 20, 2025, https://en.wikipedia.org/wiki/2018\_Wisconsin\_State\_Assembly\_election.
[12] Brennan Center for Justice, “Citizens United, Explained,” Accessed November 20, 2025, https://www\.brennancenter.org/our-work/research-reports/citizens-united-explained#:\~:text=Citizens%20United%20allowed%20big%20political,U.S.%20elections%20to%20international%20interference.
[13] Mary Beth Ferrante, “80% Of Americans Support Paid Family And Medical Leave, Yet Less Than 20% Have Access,” Forbes, Accessed November 20, 2025, https://www\.forbes.com/sites/marybethferrante/2020/02/20/80-of-americans-support-paid-family-and-medical-leave-yet-less-than-20-have-access/.
[14] Madison, “Amendments to the Constitution (June 8, 1789),” 451–452, Accessed November 20, 2025, https://www\.congress.gov/annals-of-congress/volume-1.pdf
[15] Madison, “Federalist No. 39,” Web Page, Accessed November 20, 2025, https://avalon.law\.yale.edu/18th\_century/fed39.asp.
[16] United States v. Darby Lumber Co. 312 U.S. 100. Supreme Court of the US. 1941. Oyez, Accessed 20 Nov. 2025. https://www\.oyez.org/cases/1940-1955/312us100.
[17] United States v. Darby, 312 U.S. 100 (1941), p. 124
[18] U.S. Constitution, art. I, sec. 8, cl. 18.
[19] Hammer v. Dagenhart. 247 U.S. 251. Supreme Court of the US. 1918. Oyez, Accessed 20 Nov. 2025. https://www.oyez.org/cases/1900-1940/247us251.
[20] Hammer v. Dagenhart, 247 U.S. 251 (1918), p. 274.
[21] Ibid., 276.
[22] Wikipedia, “Keating-Owen Act,” Accessed November 20, 2025, https://en.wikipedia.org/wiki/Keating%E2%80%93Owen\_Act.
[23] For Others, “History of Child Labor in America,” Accessed November 20, 2025, https://forothers.com/blog/history-of-child-labor-in-america/#:\~:text=Factory%20owners%20frequently%20took%20advantage,severe%20injuries%20and%20even%20death.
[24] Mara Silvers, “How Montana’s LR-131 ‘Born-Alive’ referendum failed,” Montana Free Press, Accessed November 20, 2025, https://montanafreepress.org/2022/11/15/how-montanas-lr-131-born-alive-referendum-failed/.
[25] Loper Bright Enterprises v. Raimondo. 603 U.S. 147. Supreme Court of the US. 2024. Oyez, Accessed 20 Nov. 2025, https://www\.oyez.org/cases/2023/22-451.