1989]                      AMPLIFYING THE TENTH AMENDMENT                       925


federal government to regulate intrastate manufacturing activities, an area of regulation traditionally reserved to the states.

In Darby, a Georgia lumber manufacturer challenged an indictment charging him with violating the Fair Labor Standards Act (FLSA) of 1938.  The FLSA provides for fixing minimum wages and maximum hours for employees engaged in the production of goods for interstate commerce.  The Court upheld the Act as within the federal government's authority under the Commerce Clause and as consistent with the tenth amendment.84 In its holding, the Court expressly affirmed Justice Marshall's statement in McColluch v. Maryland that the exercise of authority under the Commerce Clause has no limitations other than those described in the Constitution.85 The Court further construed the language of the tenth amendment as nothing more than a "truism."86 Moreover, the Court observed that there was nothing in the history of the tenth amendment's adoption to suggest that it was more than a declaration of the relationship between the federal government and the states as originally established by the Constitution.87 The Darby holding88 destined the tenth amendment to constitutional insignificance89 and further limited the protections over state authority.90




In 1946, the Court permitted a new kind of encroachment on state authority, the direct imposition of federal taxes upon state enterprise activities.91 In New York v. United States,92  the Court determined that the sales of mineral water from a state owned and operated spring were taxable.93 The Court observed that the national taxing power would be curtailed if the states, by extending their activities, could exempt revenues that were traditionally taxable by the federal government.94 Therefore, if the activity was taxable when performed by a private person, it would be taxable when performed by the states, irrespective of the tenth amendment.95  Justice Douglas' dissent in this case raised the spectre of excessive

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Federal aid to the states increased from $100 million in 1929 to $1 billion in 1939.  FISCAL FEDERALISM, supra note 49, at 2, 6.

84. Darby, 312 U.S. at 111.

85. Id. at 123.

86. Id. at 124.

87. Id.

88. Id.

89. REGULATORY REFORM, supra note 11, at 33.

90. Fernandez v. Wiener, 326 U.S. 340 (1945) (tenth amendment does not limit authority of United States to tax); United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944) (regulating interstate sales of insurance is a valid exercise of the Commerce Clause); Oklahoma v. Guy F. Atkinson, 313 U.S. 508 (1941) (construction of a dam on a navigable river affects interstate commerce); OPP Cotton Mills v. Administrator of W. and H.S., 312 U.S. 126 (1941).

91. New York v. United States, 326 U.S. 572, 584 (1946).

92. 326 U.S. 572 (1946).

93. Id. at 573, 574.

94. Id. at 589. The fear that the "[e]nlargement of state immunity," National League of Cities, 426 U.S. at 869 n.10 (Brennan, J., dissenting), or that "an expanding program of state activity [c]ould dry up sources of federal revenues and thus cripple the national government," New York, 326 U.S. 598 (Douglas, J., dissenting), is unfounded.

95. New York, 326 U.S. at 584.

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