Every once in a while, the Supreme Court delivers up an opinion conservatives or libertarians like.

For instance, conservatives always cheer when federal courts strike down state gun laws. And just last week, libertarians rejoiced when the Supreme Court ruled every state must recognize same-sex marriages.

While rulings like these certainly count as wins for “liberty,” I almost always find myself in the uncomfortable position of having to oppose them.


Because these federal court opinions extend federal power into spheres it was never meant to reach.

Under the constitutional system, federal authority remains constrained by specific enumerated powers. All other authority was left to the states and the people. While the founding generation recognized the fact that states could impose tyranny, it emphatically rejected federal control over state governments – for better or for worse.

The constitutional system was predicated on a very simple premise – centralized, government power ultimately poses the greatest threat to liberty, therefore we should guard against consolidation of government into one great body.

During the Massachusetts ratifying convention, Fisher Ames argued for the inclusion of an amendment that would later become the Tenth.

“A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and the local interests of the people. They are the safeguard and ornament of the Constitution; they will protect the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”

The states were always intended to serve as a bulwark against federal overreach. The founders never conceived of a federal government policing the states.

When I make this argument, I almost always run up against the following objection.

Wait…So, are you saying that it was intended that states can deprive their citizens of basic rights, and that when this happens there is no recourse for those being oppressed, because it’s a state’s rights issue? I mean, doesn’t someone have to step in and protect the minority from mob rule?

This leaves me scratching my head. If the feds take on the role of protecting the minorities from state tyranny, who protects those same people from the feds?

Yes. Of course states can deprive people of their rights. All governments can do that. And they do.

But that doesn’t mean we want to empower the federal government to rule over 350 million people. You end up with absurdities like federal judges telling people in some small town in Iowa that they can’t put up a nativity scene in their city park.

And just because we don’t turn the federal government into a liberty enforcement squad doesn’t leave the people in an oppressive state “without recourse.” They can pressure their state legislature to change state laws. They can sue in state court. They can amend their state constitutions. And if all else fails, they have 49 states they can move to as an escape.

Aren’t these the same actions federal supremacists suggest as recourse when the federal government fails to protect our rights?

But individuals can exercise more control over a state or local government than they can the federal government. This becomes manifestly evident in the response you get when you call a state representative as opposed to your Congressman or U.S. senator. The political class in D.C. only listens to people with money and/or influence. But a few dedicated individuals can actually impact the legislative process in a state legislature. I’ve seen it happen on numerous occasions.

“Doesn’t someone have to step in and protect the minority from mob rule?”

Stop and seriously consider this objection. These people suggest we elevate the federal government to the top of the food chain to lord over the states. As a result, it ultimately has the power to deprive all 350 million people in America of their rights, and when this happens, by their own reasoning, the people have no recourse because the federal government stands supreme.

All the federal supremacists have done is move things one level higher and centralized power. Instead of 50 competing governments serving as a check on federal authority, we get a consolidated government governing through the judiciary.

Do you really want five politically-connected lawyers defining and protecting your rights?

This all leaves us with an important question: who protects us from the feds? If we follow this out to its logical conclusion, shouldn’t we establish an international government to protect people the federal government violating their rights?

Something to think about.

The 10th Amendment

“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.”



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