What is the principle that allows the national government to override state or local actions in certain policy areas?

An Ordinance for Local Right to Work (Private Sector)

WHEREAS, it is the intent of this ordinance to provide that no employee covered by the National Labor Relations Act need join or pay dues to a union, or refrain from joining a union, as a condition of employment; and provide certain penalties for violation of those employment rights; and

WHEREAS, the [Township/City/County] desires to promote economic development within its legal boundaries, directly and in cooperation with public and private entities promoting the [township/city] and its resources, its people and its many geographical and cultural advantages; and

WHEREAS, _________ and its residents compete for the expansion of employment opportunities with other cities, counties and states whose citizens benefit from the protections under similar right to work legislation; and

WHEREAS, pursuant to [Insert Section and Article] of the [Insert State] Constitution, this Body is tasked with and empowered to enact ordinances of local self-governance, including for the protection and convenience of the public, to encourage local commerce; and protect the rights and well-being of its citizens, and

WHEREAS, we hereby find and determine that it is in the best interest of the citizens of ___________ to promote and encourage direct commerce for the protection and convenience of the public and the expansion of the tax base, by protecting employees’ right to choose employment without restraint or coercion regarding the payment of mandatory dues, fees or other payments to a labor organization as a condition of that employment.

NOW THEREFORE, BE IT ORDAINED BY ________________, STATE OF [INSERT STATE], that no employee within ____________ covered by the National Labor Relations Act need join or pay dues to a union, or refrain from joining a union, as a condition of employment; and certain penalties shall be provided for violation of those employment rights:

Section 1. Authority. This Ordinance is enacted pursuant to the authority granted to this body in [Insert Section and Article] of the [Insert State] Constitution, as a political subdivision of the State, in accordance with the laws set forth in the [Insert State] Revised Statutes and the laws of the United States of America. The intent of this Ordinance is to be applied throughout the [township/city/county], and all governmental entities subsumed thereunder, included.

Section 2. Declaration of public policy. It is hereby declared to be the public policy of the [township/city] in order to ensure individual freedom of choice in the pursuit of employment, for the protection and convenience of its citizens who desire the broadest choice of employment opportunities, to permit its citizens to choose to increase their real take home pay by decreasing mandatory payroll deductions in order to stimulate savings and economic growth, and to encourage an employment climate conducive to the economic development of the community, including recruiting new businesses to the community, that the right to work shall not be subject to undue restraint or coercion. The right to work shall not be infringed or restricted in any way based on membership in, affiliation with, or financial support of a labor organization.

Section 3. Terms. The terms “employee,” “employer,” “labor organization,” and “person” as used in this Ordinance shall have the same meanings as defined by the National Labor Relations Act.

Section 4. Freedom of choice guaranteed, discrimination prohibited. No person covered by the National Labor Relations Act shall be required as a condition of employment or continuation of employment:

(A) to resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization;

(B) to become or remain a member of a labor organization;

(D) to pay to any charity or other third party, in lieu of such payments, any amount equivalent to or a pro-rata portion of dues, fees, assessments, or other charges regularly required of members of a labor organization; or

Section 5. Voluntary deductions protected. It shall be unlawful to deduct from the wages, earnings, or compensation of an employee any union dues, fees, assessments, or other charges to be held for, transferred to, or paid over to a labor organization, unless the employee has first presented, and the employer has received, a signed written authorization of such deductions, which authorization may be revoked by the employee at any time by giving written notice of such revocation to the employer, unless the employee has expressly waived such right of revocation in the express terms of an otherwise lawful “dues check-off” card. In the invent of ambiguity in the meaning of the dues check off language, the burden of proving notice, and assent shall be on the party seeking enforcement of the dues check off agreement.

Section 6. Agreements in violation, and actions to induce such agreements, declared illegal. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed by provisions of this Ordinance is hereby declared to be unlawful, null and void, and of no legal effect.

Section 7. Coercion and intimidation prohibited. It shall be unlawful for any person, labor organization, or officer, agent or member thereof, or employer, or officer thereof, by any threatened or actual intimidation of an employee or prospective employee, or an employee’s or prospective employee’s parents, spouse, children, grand-children, or any other persons residing in the employee’s or prospective employee’s home, or by any damage or threatened damage to an employee’s or prospective employee’s property, to compel or attempt to compel such employee to join, affiliate with, or financially support a labor organization or to refrain from doing so, or otherwise forfeit any rights as guaranteed by provisions of this Ordinance. It shall also be unlawful to cause or attempt to cause an employee to be denied employment or discharged from employment because of support or nonsupport of a labor organization by inducing or attempting to induce any other person to refuse to work with such employees.

Section 8. Penalties. Any person who violates Section 7 of this Ordinance shall be guilty of a Class A Misdemeanor. A violation of any other section of this Ordinance shall be classified as a Class B Misdemeanor.

Section 9. Civil remedies. Any individual harmed as a result of any violation or threatened violation of the provisions of this Ordinance shall have a civil cause of action in _____ Court to enjoin further violations, and to recover the actual damages sustained, together with the cost of the lawsuit, including a reasonable attorney’s fee. Such remedies shall be independent of and in addition to the penalties and remedies prescribed in other provisions of this Ordinance.

Section 10. Duty to investigate. It shall be the duty of [local law enforcement agency] to investigate complaints of violation or threatened violations of this Ordinance and to take all means at his/her command to ensure the effective enforcement of this Ordinance.

Section 11. Prospective application. The provisions of this Ordinance shall apply to all contracts entered into after the effective date of this Ordinance by employers or labor organizations covering employees within our jurisdiction, and shall apply to any renewal or extension of any existing contract.

Section 12. Effective date. This Ordinance shall be in full force and effect on and after its passage and approval.

Section 13. Severability clause. If any provision of this Ordinance, or the application thereof to any person, entity or circumstances, shall be invalid or unenforceable to any extent, the remainder of this Ordinance, and the application of such provision to other person, entities or circumstances, shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

Section 14. Repealer clause. All prior Orders, Resolutions or Ordinances or parts thereof, in conflict with this Ordinance are hereby repealed.

This Ordinance is adopted pursuant to [Insert State] State Constitution, [Insert Section and Article] in that it was published ——— said Ordinance shall be in full force and effect upon signature, recordation and publication in summary form pursuant to [Insert State] State Constitution, [Insert Section and Article].

The original Constitution of 1788 contained very few specific restrictions on the ways in which the power of the national government could be exercised against the people. It guaranteed the right to trial by jury in criminal (but not civil) cases, placed limits on prosecutions and punishments for treason, forbade bills of attainder (laws aimed at particular persons) and ex post facto laws (laws that punished conduct that was legal when it happened), limited any restrictions on habeas corpus to certain designated emergencies, and prohibited the granting of titles of nobility. But the Constitution that emerged from the 1787 Constitutional Convention contained nothing like a comprehensive bill of rights. Most state constitutions of the time had bills of rights, and many citizens—and members of the Constitutional Convention—expected the new national constitution to have one as well. Nonetheless, the state delegations at the Constitutional Convention voted 10-0 against including a bill of rights in the Constitution.

The sense of the Convention delegates was that a bill of rights, in the context of the federal Constitution, was unnecessary and even dangerous. It was considered unnecessary because the national government was a limited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people. There was, for example, no need for a provision protecting freedom of speech against Congress because, as James Wilson put it, “there is given to the general government no power whatsoever concerning it.” Edmund Randolph made the same point regarding freedom of religion, emphasizing that “[n]o part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.” Similar remarks were made during the drafting and ratification process regarding juries in civil cases, general warrants, and cruel and unusual punishment. The consistent line of the Constitution’s defenders was that no bill of rights was necessary because the limited and enumerated powers of the national government simply did not include the power to violate those rights.

They even maintained that inclusion of a bill of rights would be dangerous, because it might suggest that the national government had powers that it had not actually been granted. As Alexander Hamilton put it, bills of rights “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?” Moreover, any list of rights would be incomplete. Such a list might indirectly endanger any rights not included on it.

In sum, the Constitution’s Framers thought that a bill of rights was appropriate for an unlimited government, but not for a limited one like the national government created by the Constitution. The Constitution accordingly sought to secure liberty through enumerations of powers to the government rather than through enumerations of rights to the people.

Not everyone was convinced by these arguments. Indeed, the absence of a bill of rights threatened to derail ratification of the Constitution, especially in key states such as Massachusetts and Virginia. A number of states ratified the Constitution only on the express understanding that the document would quickly be amended to include a bill of rights. The first Congress accordingly proposed twelve Amendments, the last ten of which were ratified in 1791 and now stand as the Bill of Rights.

The first eight of those ratified Amendments identify various rights of the people involving such things as speech, religion, arms, searches and seizures, jury trials, and due process of law. The last two address the concerns of the Constitution’s defenders that these enumerations of rights were pointless and even dangerous.

The Ninth Amendment warns against drawing any inferences about the scope of the people’s rights from the partial listing of some of them. The Tenth Amendment warns against using a list of rights to infer powers in the national government that were not granted. In referring, respectively, to “rights . . . retained by the people” and “powers . . . reserved . . . to the people,” the Ninth and Tenth Amendments also evoke themes of popular sovereignty, highlighting the foundational role of the people in the constitutional republic.

The Tenth Amendment’s simple language—“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”—emphasizes that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.

In this sense, the Tenth Amendment is “but a truism.” United States v. Darby (1941). No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two centuries.

Nonetheless, beginning in 1976, a line of cases has emerged that seems to give substantive constitutional content to the Tenth Amendment. In 1986, in Garcia v. San Antonio Metropolitan Transit Authority, a narrow majority of the Supreme Court held that a city was required to comply with federal labor laws, and that state sovereignty interests should be protected by the participation of states in the national political process, rather than by judicially-enforced principles of federalism. However, while Garcia has never been explicitly overruled, in subsequent cases the Court has indeed found judicially-enforceable limits on the power of the federal government to regulate states (and their political subdivisions) directly. So it is now meaningful to speak of “Tenth Amendment doctrine.” Those cases all involve action by the federal government that in some way regulates or commands state governments, such as by telling states what policies they must adopt, New York v. United States (1992), forcing state or local executive officials to implement federal laws, Printz v. United States (1997), or conditioning the states’ acceptance of federal money on compliance with certain conditions, South Dakota v. Dole (1987). Interestingly, the Tenth Amendment has not been invoked by the Court to protect individual citizens against the exercise of federal power.

Whether the Tenth Amendment actually is, or ought to be, serving as an independent source of constitutional principles of federalism is a matter of great controversy, both on and off the Court. Do these “Tenth Amendment” cases really involve the Tenth Amendment, or do they simply interpret (or perhaps misinterpret) specific grants of federal power in light of certain principles codified in the Tenth Amendment, but present in the Constitution’s structure and design even before the Bill of Rights was ratified?