Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P53 potx

DISCRIMINATION in public accommodations, such
as hotels and restaurants, because it violated
state sovereignty under the Tenth Amendment
(
CIVIL RIGHTS CASES, 109 U.S. 3, 3 S. Ct. 18, 27 L.
Ed. 835 [1883]). In 1909, the Supreme Court
struck down a federal law that prohibited the
harboring of alien women for the purposes of
PROSTITUTION because it violated the Tenth
Amendment (Keller v. United States, 213 U.S.
138, 29 S. Ct. 470, 53 L. Ed. 737 [1909]).
Nine years later the court struck down
another congressional law prohibiting the inter-
state shipment of products manufactured by
certain businesses that employed children under
the age of 14 (Hammer v. Dagenhart, 247 U.S.
251, 38 S. Ct. 529, 62 L. Ed. 1101 [1918]). In
Hammer, the court stated, “In interpreting the
Constitution, it must never be forgotten that
the nation is made up of states to which are
entrusted the powers of local government. And
to them the powers not expressly delegated to
the national government are reserve d.”
During the depth of the Great Depression,
the Tenth Amendment became dormant again.
President
FRANKLIN ROOSEVELT worked with Con-
gress to pass the
NEW DEAL, a series of programs
designed to stimulate the troubled economy.
After the Supreme Court upheld a provision of

the National Labor Relations Act (mandatory
COLLECTIVE BARGAINING)inNLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615,
81 L. Ed. 893 (1937), Congress began exercis-
ing unprecedented lawmaking power over state
and local matters. For the next 40 years, the
Supreme Court upheld congressional authority
to regulate a variety of matters that had been
traditionally addressed by state legislatures. In
one case the Supreme Court upheld the Agri-
cultural Adjustment Act of 1938 (7 U.S.C.A.
§§ 1281 et seq.) over objections that it allowed
Congress to regulate individuals who produced
and consumed their own foodstuffs entirely
within the confines of a family farm (Wickard v.
Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122
[1942]).
The Tenth Amendment enjoyed a brief
resurgence in 1976 when the Supreme Court
held that the application of the
FAIR LABOR
STANDARDS ACT
of 1938 (29 U.S.C.A. §§ 201
et seq.) to state and local governments was
unconstitutional. In National League of Cities v.
Usery, 426 U.S . 833, 96 S. Ct. 2465, 49 L. Ed. 2d
245 (1976), the court said that the
MINIMUM
WAGE
and maximum hour provisions of this act

significantly altered and displaced the states’
abilities to structure employment relationships
in such areas as fire prevention, police protec-
tion, sanitation, public health, and parks and
recreation. These services, the court empha-
sized, are historically reserved to state and
local governments. If Congress may withdraw
from the states the authority to make such
fundamental employment decisions, the court
concluded, “there would be little left of the
states’ separate and independent existence,” or
of the Tenth Amendment.
National League of Cities proved to be an
unworkable constitutional precedent. It cast
doubt on congressional authority to regulate
many aspects of local affairs upon which most
of society had come to rely. It was unclear, for
example, whether the Occupational Safety and
Health Administration (OSHA), a federal agency
established by Congress to regulate workplace
safety, retained any constitutional authority after
the Supreme Court announced its decision in
National League of Cities.
The Supreme Court eliminated these con-
cerns by overturning National League of Cities
in Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L.
Ed. 2d 1016 (1985). In Garcia the court upheld
the minimum wage and maximum hour pro-
visions of the Fair Labor Standards Act as it

applied to a city-owned public transportation
system. In reaching this decision, the court
said that if certain states are worried about the
extent of federal authority over a particular local
matter, the residents of such states should
contact their senators and representatives who
are constitutionally authorized to narrow fed-
eral regulatory power through appropriate
legislation.
JUDICIAL REVIEW of federal regulations
under the Tenth Amendment, the Supreme
Court suggested, is not the proper vehicle to
achieve this end.
The federal courts have heard many Tenth
Amendment challenges since 2000 that chal-
lenge congressional use of the
COMMERCE CLAUSE
to justify national legislation and regulation.
The courts have found little merit in these
challenges, as most activities have some effect
on interstate commerce. In Gonzales v. Raich,
545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005),
the state of California legalized the use of
medical marijuana, which ran counter to the
national ban on the drug in the federal Con-
trolled Substances Act. A woman who grew
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
508 TENTH AMENDMENT
marijuana for her own medical use and did not
sell it to others, was charged with violating the

federal law. She argued that her non-commercial
growing and use of marijuana did not affect
interstate commerce and thus removed the
Commerce Clause as the basis for the law.
Once this authority was removed, she claimed
the Tenth Amendment prohibited federal
interference. The court rejected this line of
reasoning, as it has done in other recent cases
involving federal highway and banking laws.
Apart from co nstitutional disputes, Con-
gress has undermined the Tenth Amendment
by establishing national programs that states
administer through the acceptance of federal
funding. Whether it is federal highway funding
that required states to lower the blood alcohol
amount for drunk driving to a national standard
of .08 or the funding of public education
through the No Child Left Behind Act, states
have often grudgingly gone along because they
cannot afford the loss of federal funds.
The ebb and flow of Tenth Amendment
JURISPRUDENCE reflects the delicate constitutional
balance created by the Founding Fathers. The
states ratified the Constitution because the
Articles of Confederation created a national
government that was too weak to defend itself
and could not raise or collect revenue. Although
the federal Constitution created a much stronger
centralized government, the Founders did not
want the states to lose all of their power to the

federal government, as the colonies had lost their
powers to Parliament. The Tenth Amendment
continues to be defined as courts and legislatures
address the balance of federal and state power.
FURTHER READINGS
Derthick, Martha. 2001. Keeping the Compound Republic:
Essays on American Federalism. Washington, D.C.:
Brookings Institution.
Killenbeck, Mark R., ed. 2002. The Tenth Amendment and
State Sovereignty: Constitutional History and Contempo-
rary Issues. Lanham, MD: Rowman & Littlefield.
Palmer, Kris E. 2000. Constitutional Amendments: 1789 to
the Present. Farmington Hills, MI: Gale.
CROSS REFERENCES
Constitution of the United States; Federalist Papers; States’
Rights.
TENURE
A right, term, or mode of holding or occupying
something of value for a period of time.
In feudal law, the principal mode or system by
which a person held land from a superior in
exchange for the rendition of service and loyalty
to the grantor.
The status given to an educator who has
satisfactorily completed teaching for a trial period
and is, therefo re, protected against summary
dismissal by the employer.
A length of time during which an individual
has a right to occupy a public or private office.
Tenure in General

In a general sense, the term tenure describes
the length of time that a person holds a job,
position, or something of value.
Tenure in Academia
In the context of academic employment, tenure
refers to a faculty appointment for an indefinite
period of time. When an academic institution
gives tenure to an educator, it gives up the right to
terminate that person without good cause. Under
the tenure systems adopted by many universities
and colleges, especially in the United States and
Canada, tenure is associated with more senior job
titles such as Professor and Associate Professor.
A junior professor will not be promoted to such
a tenured position without demonstrating a
strong record of published research, teaching,
and administrative service. The tenure systems
at most schools allow only a limited period to
establish such a record, by limiting the number
of years that any employee may hold a junior
title such as Assistant Professor.
Tenure in Ancient Property Law
In medieval England, tenure referred to the
prevailing system of land ownership and land
possession. Under the tenure system, a land-
holder, called a tenant, held land at the will of a
lord, who gave the tenant possession of the land
in exchange for a good or service provided by
the tenant. The various types of arrangements
between the tenant and lord were called tenures.

The most common tenures provided for mili-
tary service, agricultural work, economic trib-
ute, or religious duties in exchange for land.
CROSS REFERENCES
Academic Freedom; Feudalism.
TENURE OF OFFICE ACT
The assassination of President ABRAHAM LINCOLN
on April 14, 1865, left the post–Civil War United
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
TENURE OF OFFICE ACT 509
States in the hands of his ineffectual and
unpopular successor, ANDREW JOHNSON. It be-
came Johnson’s responsibility to determine a
reconstruction policy, and he incurred the
anger of the Radical Republicans in Congress
when he chose a moderate treatment of the
rebellious South.
Congress sought to diminish Johnson’s
authority to select or remove officials from
office, and the Radical Republicans particularly
wanted to protect Lincoln’s secretary of war,
EDWIN M. STANTON. Stanton, a valuable member
of the existing cabinet, supported the Radicals’
Reconstruction policies and openly opposed
Johnson. On March 2, 1867, Congress enacted
the Tenure of Office Act (14 Stat. 430), which
stated that a U.S. president could not remove
any official originally appointed with senatorial
consent without again obtaining the approval
of the Senate.

Andrew Johnson vetoed the measure and
challenged its effectiveness when he removed
the dissident Stanton from office. Stanton
refused to leave, and the House of Representa-
tives invoked the new act to initiate
IMPEACH-
MENT
proceedings against Johnson in 1868.
The president was acquitted, however, when
the Senate failed by one vote to convict him.
Stanton subsequently relinquished his office,
and the Tenure of Office Act, never a popular
measure, was repealed in 1887.
FURTHER READINGS
Hart, James. 1930. Tenure of Office under the Constitution.
Baltimore: Johns Hopkins.
Hearn, Chester G. 2000. The Impeachment of Andrew
Johnson. Jefferson, NC: McFarland.
“The Impeachment of Andrew Johnson.” 2006. National
Park Service. Available online at />anjo/historyculture/impeachment.htm; website home
page: (accessed September 7, 2009).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
510 TENURE OF OFFICE ACT