The Forgotten Check

When Americans hear checks and balances, they reflexively think of the three branches of the federal government: Congress checks the President, the President checks Congress, the judiciary checks both. That is correct so far as it goes, but it only tells half the story. The Founders designed a double security for liberty, and the half we have nearly forgotten is the most important one. James Madison explained in Federalist No. 51 that in the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each is subdivided among separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself. The different governments are the states and the federal government. This vertical separation of powers, federalism, was supposed to be the primary check on concentrated power. The horizontal separation among branches was secondary, a second line of defense within a federal system that already limited the national government to enumerated powers.

The original constitutional design gave the states immense structural power to check federal overreach. It was not just about protecting states rights as a slogan, it was a practical, mechanical system of mutual restraint. The Senate was appointed by state legislatures, not directly elected. State governments had a seat at the table of national power. Every federal law, every treaty, every presidential appointment required the consent of representatives chosen by the states themselves. This meant that any federal expansion had to run a gauntlet of state level scrutiny. The Electoral College gave states decisive roles in selecting the President, weighted to prevent populous states from dominating the rest. A candidate could not win by sweeping California and New York alone; they had to build a coalition across many states. The Tenth Amendment reserved all unenumerated powers to the states or the people. The federal government was supposed to exercise only the specific powers listed in Article I, Section 8, everything else belonged to the states. This was not an afterthought, it was the fundamental premise of the entire Constitution. The Constitution itself was ratified by state conventions, not by popular vote of the whole nation. The states created the federal government; it was their creature, not their master.

This was not an accident. The Founders understood that any central government, even one with separation of powers, would naturally accumulate power over time. The states were the first line of defense: sovereign governments with their own constitutions, their own militias, their own tax bases, and their own elected officers with a direct interest in resisting federal encroachment. Consider this in the early republic, the federal governments domestic responsibilities were essentially limited to the postal service, customs collection, and a small army. Everything else, education, roads, police, land use, marriage laws, criminal justice, commerce within state borders, belonged to the states. The federal budget was a tiny fraction of the economy. A citizen could go years without encountering a federal official.

What Happened To The Vertical Check

The erosion of vertical checks and balances is one of the least discussed but most consequential constitutional transformations in American history. It happened in three waves, each one a retreat from the founding design. First, the Seventeenth Amendment in 1913. By direct election of Senators, we severed the direct link between state governments and the federal legislature. The Senate became a body representing the same national electorate as the House, not the states themselves. The institutional check that Madison called the great anchor of the government vanished. State legislatures lost their voice in Washington, and the federal government lost a built in brake on its own ambition. Before 1913, a Senator who voted to expand federal power past the Constitutions limits would have to answer to his state legislature, the same body that could refuse to reappoint him. After 1913, he answered only to the voters, whose knowledge of constitutional nuance is, to put it charitably, limited. The result was that the Senate became a second House of Representatives, and the states lost their institutional defender in the national capital.

Second, the Progressive consolidation. The New Deal and Great Society reinterpreted the Commerce Clause and the General Welfare Clause to the point where there is virtually no area of life the federal government cannot regulate. The enumerated powers doctrine is effectively dead. When Washington can mandate health insurance, regulate local schools, set agricultural policy, and tell you what kind of lightbulb you can buy, what does federalism mean? Milton Friedman warned about this in Capitalism and Freedom. He argued that the scope of government must be limited, and the major function of government is to protect our freedom from enemies outside our gates and from our fellow citizens. But when the Commerce Clause is stretched to cover anything that affects interstate commerce, and what does not, the constitutional limit is gone. The Supreme Courts 1942 decision in Wickard versus Filburn is emblematic. A farmer growing wheat on his own land for his own chickens was ruled to be engaged in interstate commerce because his homegrown wheat reduced demand for commercially sold wheat. If growing food for yourself is interstate commerce, the Constitution means whatever the government wants it to mean.

Third, the administrative state. Congress delegates vast lawmaking power to unelected agencies, the Securities and Exchange Commission, the Environmental Protection Agency, the Food and Drug Administration, the Department of Education, that operate largely free of both state and congressional control. The horizontal checks, legislative, executive, judicial, have proven weak against this fourth branch. And the vertical check, states today lack the constitutional tools to resist federal mandates. They can sue, but the courts have largely upheld federal supremacy even when the federal government wanders far beyond its enumerated powers. Hayeks insight in The Road to Serfdom applies directly: the delegation of particular powers to separate agencies, and the delimitation of these powers, becomes in practice a problem which is insoluble by legal rules. The administrative state is a central planners dream and a constitutionalists nightmare. Federal agencies issue thousands of pages of regulations each year, each carrying the force of law, with Congress providing no meaningful oversight and states having no meaningful recourse.

Why Federalism Was The More Important Check

Thomas Sowell often pointed out the difference between intentions and results. The intention of federal checks and balances was to protect liberty. But the result of weakening federalism is that every national majority, no matter how temporary or narrow, can impose its will on the entire country. A bare fifty one percent in a single election can control policy on education, energy, health care, and speech from coast to coast. Think about what this means in practice. When the federal government mandates a national curriculum, it does not matter if your local school board disagrees. When the EPA sets water quality standards, it does not matter if your states environmental conditions differ. When the Department of Health and Human Services writes rules for health insurance, it does not matter if your state has different priorities. Hayeks knowledge problem applies here too. Central planners, whether in the White House, Congress, or a regulatory agency, cannot know the conditions of every community. State and local governments are closer to the people, more accountable, and better positioned to experiment. Madison and Jefferson called this the laboratory of democracy. Friedman later argued that federalism itself is a check: people can vote with their feet, moving to states with policies they prefer. That check evaporates when Washington preempts state authority on every front.

The result is a government that is simultaneously too powerful and too unresponsive. The horizontal checks are still there, vetoes, judicial reviews, oversight hearings, but they are easily overwhelmed when the scope of federal power knows no constitutional limit. A large ship with three compartments is still a large ship. The Founders wanted compartments and separate ships, the states, that could sail in different directions. Consider a concrete example from the pandemic response. The federal government, lacking any enumerated power to manage public health, nonetheless issued nationwide directives on lockdowns, mask mandates, and vaccine requirements. States that resisted faced threats of funding cuts or legal action. The Constitutions silence on federal health power was treated as an opening, not a limit. Contrast this with the founding eras approach. The Tenth Amendment left health and safety to the states, where it belonged. During the 1793 yellow fever epidemic in Philadelphia, the federal government did nothing because it had no authority to do anything. The state and city handled it. And they did so without the modern tools of public health, but the principle was clear: local problems, local solutions.

We lost that principle. And the result was a one size fits all approach that ignored differences in population density, health care infrastructure, and local conditions. Federalism would have allowed California to lock down and South Dakota to stay open, and both would have been accountable to their own voters. Instead, Washington tried to command fifty states with one policy, and the people in both California and South Dakota had little say.

Restoring The Vertical Check

I am under no illusion that a single constitutional amendment or Supreme Court decision will restore the federalism of 1789. But we can begin by treating the Tenth Amendment as though it means something. Every new federal program should face a simple question: under which enumerated power does this fall? If the answer requires the kind of creative interpretation that would make a progressive law professor blush, the program should be left to the states. We should also consider structural reforms: returning some Senate like role to state legislatures, for example through interstate compacts or a convention of states under Article Five. The Founders built a mechanism for the states to check the federal government, the amendment process can be initiated by two thirds of the states. That tool remains available. The Supreme Court could also rediscover the limits of the Commerce Clause and the spending power. In National Federation of Independent Business versus Sebelius in 2012, Chief Justice John Roberts wrote that the power to tax and spend is not the power to direct. That was a start, but the Court has been inconsistent. A consistent doctrine that respects the enumeration of powers would do more to protect liberty than any single legislation.

The Human Stakes

This is not an abstract constitutional debate. When the vertical check fails, your local school boards decisions on curriculum can be overridden by Washington. Your states energy policy can be dictated by a federal agency. Your communitys zoning laws can be invalidated by a federal judge who thinks the Fair Housing Act means something the framers never intended. The erosion of federalism means the erosion of self government itself. Liberty is not secure when all power flows upward to a single point. The Founders knew this. They built a system with two sets of checks, horizontal and vertical. We have forgotten the vertical one, and we are paying the price in concentrated power, diminished accountability, and a government that has become the very kind of sovereign the Constitution was designed to prevent. The next time someone talks about checks and balances, do not think only of the President and Congress. Think of your state capitol. That is where the first check, the forgotten check, belongs. And it will remain missing until we restore the federalism that made the American experiment the greatest in human history.

We did not abandon the Founders vision all at once. We let it slip away, one expansion of power at a time, one temporary program that became permanent, one emergency that justified just a little more federal control. The vertical check did not collapse, it was eroded, like a coastline worn down by a thousand waves. But the Constitution is still there. The Tenth Amendment has not been repealed. The structure is still on paper, waiting to be restored. It will take political will, constitutional discipline, and a citizenry that remembers what liberty requires. But the first step is simple: recognize that the forgotten check is the one that matters most. And demand that our leaders start treating it as if they remember it.