In Federalist 45, James Madison included a brief argument which has nearly become canonized as part of mainstream constitutional and conservative thinking. Discussing the various powers delegated under the then-proposed U.S. Constitution by the states to the federal government, he declared:

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.

Anyone who is the least bit involved in politics will find in this quote the genesis of countless arguments made in our day to oppose an overreaching federal government. Conservatives and constitutionalists alike attempt to use the enumerated powers listed in the Constitution as leverage with which to constrain the federal government within its prescribed bounds.

In making this argument, these individuals often then argue that a power not delegated to the federal government remains with the state, as Madison himself explained. Thus, the prevailing view is that in absence of a specifically enumerated and delegated power to the federal government, the states enjoy plenary (absolute) power over any given issue.

This conclusion is extremely dangerous. For if we are to agree that a government at any level enjoys absolute power over an issue, we divorce that government from any moral restraint and justify its arrogation of usurped authority. This argument should be rejected, not eagerly employed, by those who claim to champion limited government.

The truth is that individuals alone hold plenary power—the ability to freely act so long as they do not harm another—"unobstructed action according to our will within limits drawn around us by the equal rights of others," as Thomas Jefferson said. Individuals organize to form a government and empower that government to act as their collective agent. Barring a system wherein each participant voluntary and explicitly consents otherwise, governments may only be legitimately delegated authorities which the individuals themselves possess.

This deserves further explanation. If ten people moved to an island and organized a government, they could all agree to a law for that government requiring that one half of their produce would be donated to a communal supply. While none of the individuals have the power to compel their neighbor to do this, they have all explicitly stated that they will abide by the law.

But consider when those individuals have children. These children, upon becoming adults and participants within the government, find themselves bound by an oppressive rule agreed to by their parents, but to which they never gave consent. This law—not based on any legitimate individual authority—can only morally be binding upon those who agreed to it. All other laws are only legitimate insofar as they are based on authority all individuals within that government themselves possess. This was persuasively demonstrated by Frédéric Bastiat, who concluded:

It seems to me that the rights of the state can be nothing but the regularizing of pre-existent personal rights. For my part, I cannot conceive a collective right that does not have its foundation in an individual right or presuppose it. Hence, to know whether the state is legitimately invested with a right, we must ask whether the individual has that right in virtue of his nature and in the absence of all government.

States cannot justifiably be considered to possess absolute authority over anything. As with the federal government, a state or municipality can only legitimately operate based on one of the two factors here discussed: explicit, voluntary consent, or delegated authority which every individual himself enjoys. State constitutions, municipal code, and laws at every level of government routinely violate this principle; indeed, those who are most vocal in their cries for limited government actively assert that states can do as they please.

It is hypocritical to oppose a federal program while supporting its state-based counterpart. Yes, the federal government lacks authority to compel individuals to pay for the medical needs of their neighbors, for example. But where does a state derive such authority? Tyranny in any amount is hardly more palatable simply because it is enforced by one’s neighbors, rather than an individual a thousand miles away.

Albert Jay Nock explained in his essay The Criminality of the State that “You get the same order of criminality from any State to which you give power to exercise it; and whatever power you give the State to do things for you carries with it the equivalent power to do things to you.” Constitutionalists, conservatives, and all who claim to support any type of restraint upon the state must abandon the argument that states enjoy plenary power, and seek to impose moral restraints upon all levels of government.


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