What Authority Belongs to the States?

To understand the states, we have to correct one of the most common assumptions in modern government:

The states do not receive their authority from the federal government.

The federal government receives its authority from the Constitution.

And the Constitution was created by a people already organized into states.

That historical order matters.

The Federal Government Has Delegated Powers

The Tenth Amendment 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.”

That is not merely a statement about administrative responsibility.

It describes the basic distribution of governmental authority.

The federal government possesses delegated powers.

The states retain authority that was never surrendered to the federal government, subject to the constitutional limitations placed upon them.

This principle is easily traced from the ancient Ethelred agreement, through the English liberty charters, from the independence of the colonies, through the Articles of Confederation, into the Constitution itself.

“Few and Defined” Versus “Numerous and Indefinite”

James Madison gave one of the clearest descriptions in Federalist No. 45.

The powers delegated to the federal government, he wrote, are “few and defined.”

Those remaining with the states are “numerous and indefinite.”

Madison further distinguished – federal powers principally concern external or national objects, while state authority extends broadly to matters affecting the ordinary lives, liberties, property, internal order, improvement, and prosperity of the people.

That is nearly the reverse of how many Americans experience government today.

We increasingly assume Washington possesses general authority and the states exercise whatever Washington leaves to them.

The constitutional design begins from the opposite premise.

States Are Not Federal Departments

A governor is not an employee of the President.

A state legislature is not a local branch of Congress.

States possess constitutional standing and responsibilities of their own.

That is why federalism matters.

It divides political power geographically as well as institutionally.

The federal government is checked not only by three federal branches but also by governments existing outside the federal structure.

But State Power Is Not Unlimited

This point is essential.

The Tenth Amendment does not say:

Anything the federal government cannot do, the state government may do without limitation.

We should reject that simplistic conclusion.

The Tenth deals with powers.

The Ninth Amendment deals with retained rights.

State governments remain governments, and governments do not possess legitimate authority to destroy rights simply because that authority was not delegated to Washington.

The entire constitutional structure exists to preserve liberty.

Federalism is a means to that end, not an excuse for unlimited state power.

States Also Have a Protective Role

The states are not simply recipients of reserved authority.

They are part of the constitutional machinery designed to check federal expansion.

If every constitutional dispute must ultimately be decided exclusively by the federal government, then the federal government becomes the judge of the limits of its own authority.

The states provide an institutional check outside that system: The people acting through their states.

The states possess the governmental machinery, but the people remain sovereign.

So What Authority Belongs to the States?

A great deal.

Not because the federal government generously permits it.

Because the federal government was never given everything in the first place.

The Constitution delegates particular powers to Washington.

Other governmental powers remain with the states or the people, while the rights of the people continue to limit government at every level.

That is the architecture of American federalism: a limited federal government, sovereign states exercising retained authority, and a people whose rights exist before either one.