States’ Rights: The Constitutional Safeguard That Both Sides Betray

Let's be honest: the phrase "states' rights" has become almost useless. Say it in polite company and half the room hears Bull Connor and Jim Crow. The other half hears a license for state legislatures to do whatever they want. Both reactions are wrong - and both betray the founding principle the doctrine was designed to protect: individual liberty secured by limited government. The problem is not that states' rights are a bad idea. The problem is that nobody remembers what they were supposed to mean.

What the Tenth Amendment Actually Says

Let's start with the text - because the Constitution means what it says, not what our political tribes tell us it says. "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." Notice the order. The federal government gets only the powers the Constitution specifically gives it. Everything else is left to the states or the people. The people come last - and deliberately so. No level of government, state or federal, holds ultimate sovereignty. The individual citizen does.

James Madison made this explicit in Federalist No. 45. "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." But Madison never meant that state governments had a blank check. The "few and defined" federal powers include the authority to enforce the Bill of Rights against state encroachment - a point the Civil War Amendments made unmistakable after the original framework failed to prevent states from trampling on basic freedoms. So when someone invokes states' rights today, the first question should never be "Which level of government has this power?" but rather "Does this power respect individual liberty?" If the answer is no, the level of government is irrelevant. Tyranny is tyranny, whether it comes from Washington or from your state capitol.

How the Left Abuses the Doctrine

The progressive left has spent a century centralizing power in Washington, D.C., on the theory that a credentialed elite can engineer better outcomes for everyone. From national education standards to Obamacare to federal climate mandates, the default assumption is that the federal government knows best - and the Tenth Amendment is a relic of a less enlightened time. Except when it isn't. Watch how quickly the left discovers federalism when it suits their agenda. Sanctuary city policies? "States have the right to determine their own law enforcement priorities." Marijuana legalization? "Let the states experiment." But try to block a federal overreach on voting procedures or school curriculum, and suddenly states' rights are a racist dog whistle. This is not principle. This is power politics dressed up as constitutional theory.

The hypocrisy is not just philosophically ugly - it's legally unsustainable. You cannot claim that the federal government has the authority to mandate healthcare coverage for every American while simultaneously insisting that states have the right to nullify federal immigration law. Either the Constitution means what it says about enumerated powers, or it doesn't. You don't get to pick and choose based on which party controls Congress.

How the Right Abuses the Doctrine

But let's not pretend conservatives are innocent. Too many on my side of the aisle have treated "states' rights" as a cudgel to defend local laws that violate the very individual liberties the Constitution was meant to protect. Consider occupational licensing. There is no federal law requiring you to get a government permit to braid hair or arrange flowers. But state after state has erected barriers to entry that protect established businesses at the expense of aspiring entrepreneurs - especially minority entrepreneurs. The left calls this "consumer protection." I call it what it is: a state-level cartel that suppresses economic liberty. States' rights? No. States' wrongs.

Or consider the push in some red states to censor speech on university campuses under the guise of "campus safety" or to compel private businesses to take political positions they oppose. A state law that suppresses free speech is not redeemed because it was passed by a state legislature. The First Amendment binds all government, state and federal alike. And let's be blunt about the ugliest example: the pre-Civil War defense of slavery and the post-Reconstruction Jim Crow system both relied on a perverted version of states' rights. The argument was that states had the right to determine the legal status of persons within their borders - and that the federal government had no authority to interfere. The Civil War and the 13th, 14th, and 15th Amendments settled that question decisively. Any attempt to revive that version of states' rights is not constitutional conservatism. It is constitutional treason.

The Forgotten Middle: Federalism as a Check on Tyranny

The original case for federalism was never about empowering states for their own sake. It was about dispersing power to prevent any single level of government from becoming tyrannical. Friedrich Hayek explained this brilliantly in The Constitution of Liberty. When multiple jurisdictions compete for people, capital, and business, they are constrained in their ability to tax, regulate, and control. People can vote with their feet. This competition is not a bug of federalism - it is the whole point. Justice Louis Brandeis famously called states "laboratories of democracy." But the metaphor is incomplete. Laboratories can produce good experiments, but they can also produce bad ones. The genius of federalism is that bad experiments do not get imposed on the whole country. If one state adopts a disastrous policy, its neighbors learn from the failure. California's housing crisis and New York's fiscal mismanagement are cautionary tales for the rest of us - if we have the wisdom to pay attention.

But that mechanism only works if the federal government itself is constrained. When Washington turns into an unlimited Leviathan - using spending power to control everything from highway construction to public broadcasting to medical protocols - it corrupts the principle of federalism by making states dependent on federal largesse. You cannot claim to be a defender of states' rights while eagerly taking federal money with strings attached. That is not federalism. That is serfdom in slow motion.

Where the Author Stands

Let me be direct. I believe in federalism as the Founders understood it: a system of dual sovereignty, with the federal government confined to its enumerated powers and the states exercising broad but not unlimited authority over local affairs - all subject to the individual rights guaranteed by the Constitution. I believe the Tenth Amendment is not a dead letter. Much of what the federal government does today - subsidizing education, regulating intrastate commerce, managing healthcare - is constitutionally illegitimate and should be returned to the states or the people. But I also believe that no state has the right to violate the Constitution's protections for individual liberty. A state that suppresses free speech, enforces a religious test for public office, confiscates property without due process, or denies equal protection under the law is not exercising "states' rights." It is exercising tyranny under a different flag.

And I believe the deepest problem is not the boundary between state and federal power. It is the growth of government at every level. When both Washington and state capitols expand their reach into every corner of life, the argument over which level does the controlling becomes a distraction. The enemy of liberty is not just the federal bureaucracy. It is the assumption that someone, somewhere, has the right to manage your life for you.

The Principle That Both Sides Forget

Here is the insight that rarely gets discussed in the culture war over states' rights: the Constitution was written to protect your rights - not the rights of governments. The word "rights" appears zero times in the original Constitution's grant of federal power. It appears in the Bill of Rights, which restricts government. States do not have rights in any meaningful sense. They have powers and responsibilities, delegated by the people and subject to constitutional limits.

So the next time you hear a politician invoke states' rights - from either side - ask the only question that matters: Does this policy protect or attack individual liberty? If it protects liberty, I don't care whether it comes from the state capitol or the White House. If it attacks liberty, I don't care either. That is the original understanding. That is the principle the Founders trusted us to preserve. We have not done well by that trust. But it is not too late to recover it. It starts with remembering what the fight is really about: not states versus Washington, but the individual citizen against every concentration of power.