This essay is an argument, not a survey. We believe the division of authority between the national government and the states is among the Constitution’s wisest features and among its most neglected. We also believe the case for it must be made honestly, with full attention to the reasons many Americans have come to distrust it.
What the Framers Built
The Constitution created a national government of enumerated powers. Article I lists what Congress may do, and the Tenth Amendment adds that powers not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people. James Madison explained the design to the people of New York in 1788.
“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.”
In The Federalist No. 51, Madison added that dividing power between two governments, and then among separate branches within each, provides “a double security” for the rights of the people. Federalism was never only a matter of administrative convenience. It was a structural protection for liberty.
Why It Still Matters
- Accountability. Decisions made closer to home are easier for citizens to see, to understand and to change.
- Experiment. Justice Louis Brandeis, no conservative, wrote in 1932 that it is “one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory.” Welfare reform in the 1990s grew out of state experiments before it became national law.
- Pluralism. A continental nation of more than 330 million people does not need a single answer to every contested question. Letting states differ lowers the stakes of national elections and lets more Americans live under laws closer to their own convictions.
- Liberty. Power divided is power checked. When one level of government overreaches, the other can resist, and citizens who disagree with their state can make their case at home or move to another.
The Hardest Objection
The strongest case against federalism is historical. “States’ rights” was the banner under which slavery was defended and secession attempted, and a century later it was the banner of resistance to desegregation. Americans who remember those uses are right to be wary. The answer is not to deny that history but to read the whole Constitution. The Reconstruction Amendments, proposed by a Republican Congress, made national citizenship and the equal protection of the laws part of the federal design and gave Congress power to enforce them. Federalism rightly understood never included a power to deny those guarantees, and the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were legitimate uses of national authority to secure them.
Other Objections, Taken Seriously
Critics also argue that pollution, crime and commerce cross state lines, that states may compete in a race to the bottom on taxes and regulation, and that rights and services should not depend on where a person happens to live. These are real concerns, and the national government has real responsibilities: defense, foreign affairs, commerce among the states and the protection of constitutional rights. The question is where to draw the line, not whether there is one. When the Supreme Court held in United States v. Lopez (1995) that Congress could not use its commerce power to make gun possession near schools a federal crime, it enforced such a limit for the first time in decades, and the states remained free to act, as many already had.
A Principle That Belongs to No Party
Both parties rediscover federalism when they are out of power in Washington. Conservatives have invoked it on education, firearms and, since 2022, abortion; progressives have invoked it on marijuana, immigration enforcement and climate policy. That is less hypocrisy than evidence that the design works: it gives the losing side of a national argument somewhere to govern. But a principle defended only when convenient is not a principle. The test of a federalist is a willingness to let other states choose differently, and to live with the result.
A Resolution for the 250th
The Declaration of Independence spoke for thirteen united states. At 250, the nation they founded is larger, richer and more powerful than its founders could have imagined, and its national politics is sharply divided. Returning more questions to the states will not end disagreement. It can lower its temperature, restore a measure of self-government to communities and remind Americans that the Constitution was designed to let a free people live together without agreeing about everything.