Did the Tenth Amendment Amend the Commerce Clause?
April 12, 2004
We know that the 11th Amendment amended Article III section 2. We also know that the 11th Amendment stripped Congress of its power to abrogate a state's sovereign immunity using its Article I powers. We also know that Congress may abrogate a state's sovereign immunity under Section 5 of the 14th Amendment, because the 14th Amendment amended the 11th Amendment.
The Court's analysis of the above issues have focused on the chronology of the constitutional amendments. Since the 14th Amendment came after the 11th Amendment (and since Congress presumably has knowledge of all prior Supreme Court cases interpreting the Constitution), we can infer that Congress and the people intended to give the federal government power to subject an unconsenting state to suit in federal court for violating the 14th Amendment.
The Tenth Amendment, which codifies the principle of federalism by reserving all power not delegated to the states or the people, came after the Commerce Clause. Congress was not delegated a police power. This power rested historically with the states. Does this mean that criminal laws passed under the Commerce Clause deserve heightened scrutiny?