ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 489-491

THE TENTH AMENDMENT AND STATE SOVEREIGNTY by Mark R. Killenbeck (Editor). Lanham, MD.: Rowman & Littlefield Publishing Group, 2002. 198 pp. Cloth $65.00. ISBN: 0-7425-1879-5. Paper $26.95. ISBN:0-7425-1880-9.

Reviewed by Charles S. Lopeman, Department of Political Science, The University of West Georgia.

The five chapters of THE TENTH AMENDMENT AND STATE SOVEREIGNTY, an edited work with four contributors, each considers a different aspect of the
recent re-emergence of the issue described by the title. The perspective of each of the authors is predictably the result of his background and experiences and, together, they provide views of the issue from different sides. Although this issue does not have a truly ideological component, liberals and conservatives predominantly view these issues with different preferences, liberals being alarmed by the changing positions of the Court and focused on the individuals rights presented in the Court's cases and conservatives being satisfied with the Court's direction but generally impatient with the speed and the extent of the change and limited to the Constitutional principles presented by each case.

There are three federalism questions subsumed by the title and decided recently by the Court and considered by the authors. They each interpret the relationship between Congress and the states, although they have different effect on the respective rights and powers of each. First in time of decision by the Court is the question of the power of Congress to regulate the operation of state government: GARCIA v. SAMTA and NEW YORK v. U. S. The principal importance of this question is in the area of unfunded mandates and the protection of the states from requirement that they serve as unpaid agents of the Congress. Next, is the question of the extent of the power of Congress to regulate activity of individuals pursuant to the Commerce Clause and, implicitly, the power of states to regulate the same or similar activity: U. S. v. LOPEZ and U. S. v. MORRISON. Arguably this is the question that has the greatest importance to the states because of the effect of valid Congressional regulation on the right to engage in similar regulation. The impulse of Congress to federalize crimes has threatened the states' control of their criminal laws and, although these decisions do not increase the range of permissible state criminal regulation, they do safeguard the states' traditional jurisdiction.
Most recently, the Court has decided questions of the immunity of states from actions authorized by Congress to enforce rights created by Congress: SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ALDEN v. MAINE and KIML v. FLORIDA BOARD OF REGENTS.

Mark R. Killenbeck the editor of this collection, is a law school professor and constitutional historian and contributed the first and last chapters. In the first, "No Harm in Such a Declaration?", after an overview of the articles of his contributors, Killenbeck reviews the Court's significant federalism decisions during the last thirty

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years, and analyzes, in light of these decisions, the Founder's reasons for the change from the confederal relationship under the Articles of Confederation to the federal relationship that resulted from Philadelphia and the ratification by the states and the proposal of and ratification of the first ten Amendments to the Constitution. Professor Killenbeck utilizes the FEDERALIST PAPERS, letters written by and to the Founders and early commentaries on the Constitution to support his conclusions that the Commerce Clause gave Congress rather greater powers than the recent decisions of the Court recognize, that the Eleventh Amendment gives the states rather less immunity and that the Court should exercise rather less review of Congressional acts than it has recently. Professor Killenbeck recognizes, however, that the Court has a "role in policing the transgressions of both the Congress and the states" and, therefore, presumably, that there are limits to Congress' Commerce Clause powers and that the Eleventh Amendment gives the states some immunity from actions by individuals. In the final chapter, "Revolution or Retreat," Professor Killenbeck considers the significance of the recent federalism decisions and the prospect that the present Court majority, reinforced by prospective additions, may expand the changes it has made in the federal relationship during the last quarter of the 20th Century.

William E. Leuchtenburg is legal historian by vocation and has studied and written of the New Deal and the Court. His interest and concentration in the 1930's provides the perspective through which he examines "The Tenth Amendment over Two Centuries." Professor Leuchtenburg concentrates on Supreme Court cases from HAMMER v. DAGENHART through the October 2000 term of the Court. His New Deal perspective emphasizes the facts of the cases which allows him to focus on individual rights of the parties rather than the implicit questions of Constitutional principles. His analysis of the cases decided since 1976 is helpful in understanding the federalism issues of the Court's recent cases although his perspective does not allow a balanced presentation. Leuchtenburg, not surprisingly, concludes that HAMMER was wrongly decided, that the Court correctly decided its federalism cases between DARBY LUMBER in 1941, and GARCIA in 1987, except NATIONAL LEAGUE OF CITIES, and that the Court has moved further and further off course since GARCIA. In his conclusion, Professor Leuchtenburg seems to recognize that "our system of federalism" assures the states some role but his perspective draws him back to SCHECTER POULTRY, U. S. v. BUTLER, and CARTER v. CARTER COAL with the resulting fear that the Court's definition of that role may portend that protection of individual rights will be "beyond the...aid of any government." As Professor Killenbeck, Leuchtenburg is concerned that new appointments to the Court may move it "farther along the path" of its recent federalism decisions.

Jack N. Rakove is a history professor with special interest in the period from the American Revolution through the 1790s, particularly the life and thought of James Madison. He begins his chapter, "Federalism: Was There an Original Understanding?," with the disclaimer that, as a historian, he has "no obligation to render decisive, conclusive answers" and that he is happy to "muddy the waters." He views the revival of the Tenth Amendment from two vantage points: the period leading up to, and the processes of, the Philadelphia Convention, and the ratifying conventions and their debates; and the recent

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circumstances that made the revival of vitality in the Tenth Amendment possible. His interest in the Founding period makes the former rather more extensive than the latter. Although he doesn't reach a conclusion, per se, he is clearly impressed by the view of James Wilson that the Tenth Amendment phrase "or to the people" created a fluid sovereignty that allows the "people" to support whichever level of government serves its interests at a particular time. His cursory enumerations of the circumstances that led to the development of a national hegemony and those that led to an "unraveling" of that hegemony deserve a separate essay. Professor
Rakove's chapter is the most evenhanded and, although not providing conclusive answers, does not muddy the waters but clarifies the streams that constitute the controversy.

John Choon Yoo is a law professor and his published work has used historical materials to provide insight into current constitutional issues. Significantly, he has been a clerk to Justice Clarence Thomas. The Supreme Court, in DARBY and GARCIA, abnegated the ultimate authority to determine the extent of Congress' Commerce Clause powers and the authority to protect the states' Tenth Amendment rights, respectively. These decisions necessarily were denials of the Court's right to exercise judicial review in these areas. Although the Court has not directly overruled either of these decisions, its review of the constitutionality of Congress' Acts has caused the current federalism controversy to re-emerge. In "Federalism and Judicial Review" Professor Yoo reviews the history of the ratification of the Constitution and is convinced that the Founders did not intend that the political process was to be "federalism's exclusive safeguard," but that the Court's exercise of judicial review "was to be the ultimate protector of state sovereignty." His contribution is an exhaustive review of the ratification process as it was related to the question of the Founder's intended source of the power to arbitrate between the national government and the states.

These historical analyses of the adoption of the Commerce Clause, the Tenth and Eleventh Amendments, Founder's intended extent of the Court's power of judicial review in federalism cases and the analyses of the Court's decisions in its recent federalism cases allow readers to orient themselves with respect to the controversy and to move toward a personal conclusion with respect to the relative rights and powers of the national and state governments. Not surprisingly historians and legal scholars can be satisfied that these explain the recently emergent federalism questions. The liberal contributors seem to believe that the "Constitutional
Revolution of 1937" that changed the constitutional balance that had existed for 147 years was the last permissible revolution and that after that time the justices are foreclosed from making fundamental change. However, recognition of the political nature of the Supreme Court negates such a crabbed view of the Court's power. Once there is a recognition that both the national and state governments have, at least, a modicum of powers and rights, as each of Professor Killenbeck's contributor's does, and that the U. S. Supreme Court has the ultimate power to determine the extent of these rights and powers, as Professor Killenbeck has convincingly concluded, readers of THE LAW AND POLITICS BOOK REVIEW will recognize the critical line between the levels of government.

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Copyright 2002 by the author, C. Samuel Lopeman.