Tenth Amendment: Federalism as a Constitutional Command

I would like you to ponder the meaning and importance of the 10th Amendment for our class discussion. The 10th Amendment provides:

"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."

Is the 10th Amendment--one of the Bill of Rights after all--nothing more than a "truism" or "meaningless rhetoric" as some Justices have suggested from time to time? Or does it set forth an important principle, judicial enforcement of which is "essential to maintaining the federal system so carefully designed by the Framers and adopted in the Constitution?"

Should the 10th Amendment be enforced by the Supreme Court under Marbury as part of the Supreme Law of the land? Or is it merely a precatory principle, a "pretty please" exhortation that is left for enforcement to the political process and the states' power to protect themselves from federal overreaching?

Notice there are two ways the 10th Amendment can become part of the constitutional equation in federalism litigation.

First, it can come in "as a rule of construction"--for example in Commerce Clause litigation--to suggest that there must be reasonable limits to expansive interpretations of federal power if the states are to have any reserved powers. If the Commerce Clause permits Congress to regulate everything as affecting commerce, then the reserved powers of the states under the 10th Amendment will exist--if at all-- only at the pleasure of Congress. Thus, if the Commerce Clause and the 10th Amendment are read together, the reader might conclude that substantial limits to the commerce power are necessary to provide a reasonable scope to the reserved powers of the states under the 10th Amendment.

Second, as one commentator has put it: "[T]he principle of federalism may function as a [direct] check on the exercise of a granted power in much the same fashion as do [other] provisions of the Bill of Rights. In other words, just as Congress may not use its commerce powers to transgress the First Amendment, it may not use that power to violate the [Tenth Amendment and] the principle of federalism."