Federalism and Freedom

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Sometime in June of 2015, the Supreme Court is expected to hand down a momentous ruling on gay marriage. Most observers predict a split decision in favor of recognizing the validity of gay marriage nationwide with the dissent based largely on the argument that under the concept of "federalism," states should get to decide what constitutes a marriage within their borders.

Federalism, for those who are not aware, is the principle that the states have a unique role to play in the process of governing which is separate and distinct from that of the federal government. This notion leads to an inevitable tug-of-war between the states and the federal government with each seeking more power than the other. What are often left out of the calculation are the rights of individuals.

Advocates of "states' rights" are keen to reference the Tenth Amendment which declares that "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." In my experience, what these activists frequently seem to forget, though, are those last four critically important words: "or to the people."

The US spent more than eighty years after the adoption of the Tenth Amendment allowing slavery. It took 130 years for women to get the right to vote. Interracial marriages remained illegal for over 170 years. Consensual sex between adults and the right to carry a concealed weapon weren't legalized in all states for over two centuries.

Despite the fact that the Constitution recognizes that at least some "powers not delegated to the United States by the Constitution" are in fact reserved "to the people," state governments typically see little need to leave any aspects of human behavior outside of government control. The powers officially reserved to "the people" by the Tenth Amendment were essentially nonexistent until the passage of the Fourteenth Amendment in 1868.

Even with the Fourteenth Amendment, we still find ourselves—a century and a half later—trying to determine what powers are reserved to the states and which ones rightfully belong with the people.

We do ourselves a disservice when we frame every argument as one of the state governments versus the federal government, because the conflict is more appropriately viewed as government (at all levels) versus the people. It was government that said some people could be enslaved, people of differing races couldn't marry, women couldn't vote, consenting adults couldn't have sex, and the right to carry a concealed weapon could be denied.

In many of these cases, it was the Supreme Court that drew a line forbidding states from infringing on these basic human rights. The Supreme Court is not and should not be considered the final arbiter of right and wrong, but it is traditionally the last stop for individuals who are seeking to have "the powers not delegated to the United States by the Constitution" reserved to themselves rather than to state governments.

If our goal is increased freedom and liberty for individuals rather than just a relocation or rearrangement of authoritarian power, we should support changes to the law that grant more power to the people and less to the state. Please don't let your personal objections to how some people choose to exercise their freedom lead you to support increased government power or control. No one wins in that scenario.


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