The founding of the United States of America was the greatest political experiment in history.  A critical component of that experiment was the localized authority commonly known as States’ Rights.

The American experiment turned the history of world politics upside down.  We replaced centralized authoritarianism with individual sovereignty.  Instead of kings, emperors, and dictators imposing themselves on their captive subjects, the free American people created a system that allowed them to choose their leaders and to structure the social compact that would order their society.

America fought a Revolutionary War to separate from the authoritarian monarchy of Great Britain to enable this bold new vision for governance.  The revolution was not just a war, it was a philosophical upheaval.  It heralded the birth of a startling new idea.  The idea was that sovereign people would establish for themselves a government that had limited authority, while retaining all other rights and authorities for themselves.  It ushered in the first real era of freedom in human history:  free people, free minds, and free markets.

The United States of America was founded by thirteen sovereign states that had already been in existence for quite some time.  Each of these states had their own charters or constitutions, their own leadership structures, their own legislatures, their own administrations, their own judicial systems, and their own functioning societies.  The central government of the new country, which was created and established by the states, was based on the principle of federalism.   It was not meant to replace the leadership, authority, or constitutions of the individual states, but rather for the states to present to the rest of the world a united front in the form of a federation of sovereign states.

The implications of this federal structure were profound.  The central government, which owed its existence entirely to the consent of its constituent states, was severely constrained in its authority by a constitution approved by the states.  Since the founding states had just fought a bloody revolution to separate themselves from a domineering empire, the new constitution was essentially a political straight jacket designed to ensure that the newly created federal government would never step beyond its delegated authority to usurp authority and become tyrannical.  The constitution was a complex set of checks and balance to ensure that all other powers and rights not specifically delegated to the federal government remained with the states and their citizens.

Most of the limited powers delegated to the new federal government were intended to protect the thirteen original states from being abused or attacked by a hostile world.  At the time, the major colonial and trading powers — Great Britain, France, Spain, and the Netherlands – were scouring the world to gain territory and captive markets.  Alarmed by this threat, the founding states of America concluded that they needed to organize a federation responsible for mutual defense and for establishing international treaties and trade agreements that protected the interests of the individual states.  They also wanted to facilitate interstate commerce and the free movement of people and goods so that the states would not conflict with each other. 

Thus, the new federal government was never intended to supplant the authority of each state to organize and administer their own internal affairs.  The localized authority of the states was zealously guarded by the founders.  Their greatest fear was that the new federal government would attempt to trample on localized power because that had been the history of all central governments since the beginning of civilization.  To counter this fear, the Bill of Rights was added to the new Constitution in the form of the first ten amendments. 

The crowning glories of the Bill of Rights are the Ninth and Tenth Amendments.  The Ninth Amendment ensures that citizens retain all other rights except those few specifically ceded to the federal government in the Constitution.  The tenth amendment ensures that the states retain all other authorities except those few specifically ceded to the federal government in the Constitution. 

It is clear, then, that the concept of States’ Rights is perhaps the most fundamental element of the division of authority in our federal structure.  The states created the federal government, the states crafted a constitution that limited the authority of the federal government, and the states explicitly retained for themselves every other authority.  The “United States” is not in any sense a singular expression of one central government, it is an expression that the individual states are sovereign entities that structured a federation to represent their common interests in interstate and world affairs.

But is this separation of powers between the states and the federal government still necessary after all these years?  Do the original exigencies that incentivized our federalist structure still exist?  Can’t we just move all the state-level authority to the federal government now and simplify things?  What is the purpose of States’ Rights in the modern world?

The simple answer is that, in this context, the modern world is no different than any other political circumstance in human history.   People have an inalienable right to their own lives, and the best way to protect this right in a hostile world is to keep political power as close as possible to each person. 

This is called the Principle of Subsidiarity.  The principle simply means that political power should be divided up such that most of it is as close to each person as possible, and only those few elements of political power that are necessary to be handled by distant governments should be.  A key implication of this principle is that sovereign individuals are the primary units of our political society.  That is entirely the meaning of the Ninth Amendment.  We each retain our inalienable rights to life, liberty, property, and the pursuit of happiness.  The only way to have a free society is to invest a vast amount of political power in each person, which is normally exercised through voluntary interactions with families, friends, communities, and free markets.

Of course, individuals do not exist in a vacuum, and not everyone is cooperative or non-threatening.  Free societies require organized means to protect individual rights, so there are circumstances where some political power must be ceded by individuals to broader social entities, including the various levels of local, state, and federal government. 

However, even when political power is ceded by individuals to a broader social entity, the Principle of Subsidiarity still applies.  Political power should never be ceded to a broader level in society than is necessary for it to successfully function.  Most political decisions can be handled within a community or within a county, where people have greater control over the selection of their leaders, where their leaders are more familiar with the local issues, and where the actions of the leaders can be held more directly accountable to the people who live there. 

A few political decisions are so broad that they must be handled at the state level, and even fewer are so broad that they must be handled at the national level.  The obvious danger of making political decisions at these broader levels is that individual people have almost no control over the selection of broader leaders, broader leaders are not familiar with local issues, it is rare for issues to impact individuals and communities in the same manner, it is extremely difficult to hold broader leaders accountable (or to even know what they are up to), and the opportunity for corruption (and the magnitude of potential corruption) is far greater. 

There are also many reasons beyond the Principle of Subsidiarity why it is advantageous to individual citizens to keep power localized at the state level rather than centralized at the federal level.   These include:

  • Citizens have more direct control over state government than the federal government.
  • States have economic, legal, and operational resources that dissatisfied political parties or networks of angry individuals do not have if it becomes necessary to push back against the federal government.
  • It is much harder for a cabal of corrupt elitist oligarchs to infect 50 state governments than to create one unfixable swamp in Washington.
  • An alliance of like-minded states willing to push back against Washington can have tremendous power and influence if they pool their resources and energy. The alliance of states can give citizens a strong negotiating position if the federal government oversteps its authority.
  • Each state has unique challenges, cultures, and resources – cookie-cutter solutions from Washington are unlikely to be optimal locally, and they are likely to beggar some states in favor of others.
  • If political leaders make mistakes, their mistakes will be amplified, harder to avoid, and harder to correct if power is centralized in one big government.
  • 50 state “laboratories” experimenting with solutions to public problems is better than one mandated federal solution that may trap the entire country into a mistaken policy.
  • If all power is nationalized, the densely populated states and urban areas will control all political decisions. Less densely populated states and areas will have almost no political influence, even over their local issues.
  • States with robust local power provide 49 other options for refuge if your current state becomes tyrannical – no options for refuge can exist, at least in this country, if an all-powerful federal government becomes tyrannical.
  • It is better for states to retain more control over their wealth, for their own purposes, than to funnel it through the inefficient and often corrupt bureaucratic machine in Washington.

The Founders believed that the destruction of freedom is always accompanied by the centralization of power outside the reach of common people.  The sole remedy for this is for citizens to severely limit the amount of power that a centralized government has.  It is impossible to be vigilant over leaders and bureaucrats who are a thousand miles away and who are tempted by the enormous wealth, power, and corruption that inevitably is drawn to big government like moths to a candle.  It also impossible to prevent every abuse of power, so it is imperative to limit the power of fallible leaders and for citizens to zealously defend their rights of election, reformation, and revolution.

If the central government oversteps its authority and lurches toward tyranny, what checks are there against this if the powers of the individual states have been neutered over time?  While the Founders crafted many checks and balances within the Constitution for the federal government to check itself, the ultimate check and balance is the reality that the states created the federal government and the states have the authority to reform it, if necessary.  After all, a written constitution is just a piece of paper if the entrenched authorities in Washington choose to ignore it.  In such an eventuality, the states that crafted the constitution and that formed the federal government have the ultimate obligation to take matters into their own hands and remedy the situation.

The Founders always understood this, because it was the thirteen original states that stood steadfast against the hyperactive and oppressive British monarchy.  In the words of Thomas Jefferson in the Declaration of American Independence, “…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.  Whenever any form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to instituted new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

States’ Rights is the ultimate political check and balance on Washington.  It is vital for us to elevate this principle to its proper place at the forefront of today’s political dialogue.  States’ Rights is likely to become the pivotal rallying cry in the decades to come.