“Consent of the Governed” - When States Reject the Compact
The Constitution was built on a deliberate compact between the people and the states. What happens when significant portions of that compact are no longer accepted?
The Constitution was ratified by the states as a binding compact. The original 13 states consented through their legislatures. Every state admitted afterward explicitly accepted the same framework. This was never meant to be a temporary or easily discarded agreement.
The Bill of Rights
The Bill of Rights was originally a restraint on the federal government. The 14th Amendment changed that by incorporating most of those protections and making them binding on the states as well.
Yet today we see sustained, deliberate resistance in multiple states to core Bill of Rights protections:
First Amendment (speech, religion, assembly)
Second Amendment (the current “assault weapon” cases are only the latest example)
Fourth, Fifth, and Fourteenth Amendment protections in criminal justice and regulatory contexts
When states treat the Bill of Rights as optional, they are rejecting a central part of the constitutional settlement.
Federal Supremacy and Enumerated Powers
The Constitution allocates certain powers to the federal government and explicitly excludes the states from exercising them. Immigration and border control are among the clearest examples of enumerated federal authority. At the same time, the Ninth and Tenth Amendments reserve all other powers to the people and the states.
This structure is deliberate. If a power is properly federal, a governor’s personal or political dislike does not override it. The state has no more authority to nullify that power than it does to ignore the Bill of Rights. Expressing disagreement is legitimate. Active resistance and nullification are not.
Governance Without Representation
The Framers designed the Senate to give the States direct representation in the federal government. Senators were chosen by state legislatures, not the people at large. This was intentional. It gave the states a powerful institutional voice to protect their sovereignty and check federal overreach.
The 17th Amendment changed that. By making Senators directly elected by the people, it nationalized the Senate and largely severed the states’ formal institutional link to the federal government. State legislatures lost their direct leverage. Today, Senators no longer answer to the State at all. They answer primarily to fundraising, national party interests, and popular vote cycles in their state.
One might almost say the States now face governance without representation — a situation eerily reminiscent of the original colonial grievances against King George and Parliament. Ironically, all that might have been required to prevent the American Revolution was giving the colonies a meaningful voice in Parliament. Consider that in light of the States having no direct representation.
Whether one agrees with them or not, the roughly ten Blue States that are most aggressively resisting federal authority clearly do not feel they have meaningful institutional voices in a federal government that now holds large swathes of power. This situation fuels much of the current tension.
The Legal Foundation of the Constitution
It is worth remembering that the original 13 States had to ratify the Constitution in order for it to binding on them. And then every state admitted after the original 13 was required to formally accept the Constitution as a condition of admission. Through their enabling acts and admission resolutions, which are legal and binding, each new state explicitly consented to the constitutional compact and agreed to be bound by it. This was not a casual formality. It was a positive, binding act. The state legislature and people affirmatively chose to join the Union under the terms set by the Constitution.
The Deeper Problem
The entire point of the Constitution is that certain foundational laws, processes, and protections of individual rights are taken off the table. The government, federal and state, is constrained by those limits. And the municipal governments are bound by the State Constitutions. Every layer of our Federal system has a legally binding structure that they are obligated to.
When those governments overstep, we have peaceful mechanisms — elections, legislation, federalism, the courts, and petition for redress of grievances — to enforce the Constitution.
As President Coolidge observed on the 150th anniversary of the Declaration of Independence, the genius of the American system was placing certain rights beyond the reach of government. The Constitution is not a grant of unlimited power to majorities or bureaucracies. It is a deliberate restraint — a document in which We the People removed foundational rights and principles from ordinary political control, and the States agreed to this framework.
The real danger we face today is not simply rogue bureaucrats or overreaching federal agencies. It is the growing willingness of states themselves to nullify portions of the Constitution and ignore enumerated federal powers when it suits them. Whether it is the Bill of Rights or clear areas of federal supremacy such as immigration, some states are effectively declaring that parts of the constitutional compact no longer apply to them.
This is far more corrosive than simple policy disagreement. When states, which were parties to the original compact, begin selectively rejecting the Constitution while still claiming its protections and benefits, they undermine the very foundation of the Union. The peaceful mechanisms designed to resolve such disputes are being bypassed. That path leads not to reform, but to constitutional erosion and eventual fracture.
Observations from the Late Republic
#Observations #LateRepublic #Federalism #TheConstitution
Further Reading
The Federalist Papers (especially Nos. 10, 39, 45, 51, and 62)
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty
Akhil Reed Amar, The Bill of Rights Primer
To be brief and this deserves to be fully unpacked, authority has developed an accountability problem. Up and down the line, it has become increasingly difficult to hold authority to account. When authority sees criticism or attempts to hold it to account as an existential threat and treats it accordingly, and manages to dismantle or evade the levers and chain-of-command of accountability, this is what we get.