1867 Mitchell map of the United States 1867 Mitchell map of the United States
The Tenth Amendment: Retention of the People's Rights

The Tenth Amendment was ratified on December 15, 1791 as a part of the Bill of Rights.

When the U.S. Constitution was initially proposed and ratified, several members of Congress, especially within the antifederalist faction, took issue with its lack of a bill of rights.

Antifederalists argued that a bill of rights would explicitly define the rights of the people, in effect preventing them from being violated. Several state constitutions contained a bill of rights – if the federal government took precedent to state government, it followed that the federal constitution should have one as well. In contrast, federalists such as Alexander Hamilton, did not believe a bill of rights was necessary. Since the government was limited to its delegated powers, it seemed unnecessary to define the rights of the people. In fact, some federalists thought a bill of rights was a dangerous concept – rights omitted may be considered unretained.

In the end, the antifederalist concerns were heeded as several states ratified the Constitution on the condition that a bill of rights would be added. After the Constitution’s ratification in 1788, James Madison drafted the Bill of Rights, drawing inspiration from the Virginia Declaration of Rights and amendments proposed by the states during ratification. He initially recorded 19 amendments; the House and Senate pared these down to 12 before they were sent to the states for ratification. The first 2 amendments, which pertained to apportionment in the House and pay for Congress, were rejected by the states, leaving the first 10 amendments as we know them today.

Along with the Ninth Amendment, the Tenth Amendment addressed the concern of many federalists: that rights omitted would be rights unretained. The Tenth Amendment stressed that powers not delegated to the United States, nor prohibited to the individual states, would, by default, always be retained by the states/people – NOT the federal government.

Below is a collection of resources recognizing this crucial piece of American law. Browse these resources or jump from section to section by clicking the links below:

Amendment X

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.

Explore the 10th Amendment at NCC’s Interactive Constitution >>

Selected online resources on the Tenth Amendment:

American ConstitutionNational Constitution Center’s Interactive Constitution

The National Constitution Center offers a collection of introductory essays by top liberal and conservative legal scholars that give overviews of Tenth Amendment as agreed upon by both authors, as well as separate brief statements of these scholars’ disagreements about the law’s interpretation.

Visit NCC’s Interactive Constitution >>



James Madison’s Montpelier: A Constitutional Conversation on the Tenth Amendment

In 2013, James Madison’s Montpelier hosted a panel of scholars to discuss the Tenth Amendment’s origins, in particular the way that James Madison, Federalists, and Antifederalists looked at the delegation of powers. JMC faculty partner Lynn Uzzell was an expert featured on the panel.

Watch the discussion on YouTube >>



Library of Congress reading room, 1901A Library of Congress Guide to the Bill of Rights

The Library of Congress website features both an online exhibit and web guide for the Bill of Rights. The online exhibit, “Creating the United States,” tracks the origins of the Bill of Rights using primary documents, including a speech that describes the it as “little better than whipsyllabub, frothy and full of wind.” The web guide also offers an extensive collection of resources on the Bill of Rights and the thought process behind it.

Visit “Creating the United States” here and the Bill of Rights web guide here >>



Rotunda for the Charters of FreedomThe National Archives

The National Archives, home of the Bill of Rights, has videos, teaching and learning resources, and articles on its website. This year, the National Archives held a program on December 12 in which a panel of scholars and authors explored the unique history of the first 10 amendments and the ways in which they have influenced national constitutions around the world from 1791 to today.

Visit the National Archives >>


*If you are a JMC fellow who’s published on states’ rights, the Tenth Amendment or its history and interpretations, and would like your work included here, send it to us at academics@gojmc.org

Commentary and articles from JMC fellows:

States’ Rights and the Tenth Amendment


Prohibition, the Constitution, and States' Rights (Sean Beinenburg)Sotirios A. Barber, The Fallacies of States Rights. (Harvard University Press, 2013)

Sotirios A. Barber, National League of Cities v. Usery: New Meaning for the Tenth Amendment? (1976 Supreme Court Law Review, University of Chicago Press, 1976)

Sean Beienburg, Prohibition, the Constitution, and States’ Rights. (University of Chicago Press, 2019)

Keith Dougherty, “An Empirical Test of Federalist and Anti-Federalist Theories of State Contributions, 1775-1783. (Social Science History 33.1, Spring 2009)

Vincent Phillip Muñoz, State Police Powers and the Founders’ Constitutionalism.” (Starting Points Journal, March 23, 2020)

Hidden Laws, How State Constitutions Stabilize American Politics, Robinson Woodward-BurnsBenjamin E. Park, Jeff Sessions is a Hypocrite on States’ Rights. But So is Everyone Else.” (Washington Post, January 10, 2018)

Robinson Woodward-Burns, Hidden Laws: How State Constitutions Stabilize American Politics. (Yale University Press, 2021)

Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights. (Princeton University Press, 2013)



The Bill of Rights


American Constitutional LawJeremy Bailey, Was James Madison ever for the Bill of Rights? (Perspectives on Political Science 41.2, 2012)

Warren M. Billings, ‘THAT ALL MEN ARE BORN EQUALLY FREE AND INDEPENDENT’ Virginians and the Origins of the Bill of Rights.” (The Bill of Rights and the States, 1607–1791, 1991)

Michael Douma, How the First Ten Amendments became the Bill of Rights.” (Georgetown Journal of Law and Public Policy 15.2, 2017)

Justin Dyer, American Constitutional Law, Vol. 2: Liberty, Community, and the Bill of Rights. (West Academic Publishing, 2018)

Arthur Milikh, Rethinking the Bill of Rights.” (National Review, December 15, 2016)

Thomas Pangle, The Philosophical Roots of the Bill of Rights: The Federalists’ and Anti-Federalists’ Conceptions of Rights.” (The Political Science Teacher 3.2, Spring 1990)

Thomas West, The Declaration of Independence, the U.S. Constitution, and the Bill of Rights.” (The Declaration of Independence: Origins and Impact, CQ Press, 2002)


*If you are a JMC fellow who’s published on states’ rights, the Tenth Amendment or its history and interpretations, and would like your work included here, send it to us at academics@gojmc.org



Facebook iconTwitter iconFollow us on Facebook and Twitter for updates about lectures, publications, podcasts, and events related to American political thought, United States history, and the Western tradition!



Want to help the Jack Miller Center transform higher education? Donate today.