Ok, so this is gonna get me on a little soapbox rant. It’s not directed at you personally, and I’ll try not to be too long winded.
—But this 10th Amendment theory I see so often is completely wrong.
Quick history: Amongst our Founding Fathers, the idea of a Bill of Rights wasn’t universally supported, mainly because it was impossible to list out every single right the People had. Thomas Jefferson acknowledged this but said, “let’s at least protect what we can.”
—But another Founding Father named James Wilson disagreed. He worried that some time in the future, people would come along and see the Bill of Rights and believe those were the only rights the People had. He feared that tyrannical leaders would start to attack any right that wasn’t expressly listed.
The compromise was the 9th Amendment—not the 10th. It reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It’s quite clear: the fact that certain rights aren’t listed does not mean they don’t exist, nor can those rights be disparaged just because they aren’t listed. The right to travel freely around the US, the right to get married, or the right to be presumed innocent until proven guilty in criminal court, are examples of this.
—But these days, you won’t hear much from the Right about the 9th. Instead they quote the 10th (and they usually leave out the last few words):
“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.”
So this involves regulatory powers of the State: e.g., what the legal drinking age will be, regulations on hunting, fishing, or driver’s licenses, things like that.
The issue of abortion is one of personal liberty, not one of state power. The 10th Amendment does not grant states the ability to say, for example, “Sorry miss, we understand that you have a molar pregnancy, and this could turn cancerous and kill you, but we have moral qualms with the procedure to treat you so we’ve decided you can’t get it. Best of luck!” That is a severe infringement on a person’s rights, and a gross example of government overreach.
Nor could the state pass a law making it illegal to travel to another state for something that’s legal in that state.
Right wing lawyers, judges, and politicians are pushing the idea that if you think you have a certain right, you’d better be able to point right to it in the Constitution. And if you can’t, then it’s not a right you have, it’s a power that the state has over you.
And that is very, very, very wrong. And dangerous.