States: the Last Defenders of the Constitution

William Kovacs
6 min readOct 28, 2021

The political abuse of federal power by the Biden administration is so dividing the states that it is tearing America apart. It is not a battle of Red State vs Blue State; it is a battle of freedom-loving states vs authoritarian wokeness. We are a nation without a functioning federal government or a president capable of speaking to its people.

With a completely open southern border, the U.S. no longer is a sovereign nation. It is open to the world, including drug cartels, sex and slave traders, and criminals seeking safe places to commit crime and anyone infected with disease, as long as they come through the southern border. The Biden administration is infecting the nation with a serious, deadly disease — Distrust. Americans distrust the government, the news media, corporations, and each other. Without trust in our leadership and our neighbors, we cannot function as a country.

As the federal government collapses socially and economically, it also amasses more power in Washington with its vaccine mandates, forced firings of employees in a time a worker shortage, Department of Justice orders to treat parents as “domestic terrorists” and banking regulators forcing banks to disinvest in industries out of favor with the government and invest in those activities prized by the government.

The federal government must be brought back into a Constitutional framework. It must recognize the limits of its powers. Neither Congress nor the courts will restrain it. The “President” assumes all the power his staff wants to exercise. The states are now the only constitutional entity that can restrain the madness of federal power. If the states do not act now, the federal government will so diminish their role in the Union, that states will be merely a collection of random lines on a map.

While it is very unlikely the Free States and the Woke States will come together, it is possible those states with common beliefs can organize as a counter-force to restrain federal power. Failing collective state action, individual states must protect the personal liberties of their citizens.

Collective state action can reduce federal power

The governing framework of the U.S. is“…federalism … a system of government in which powers are divided among two levels of government of equal status.” Within this structure, power is balanced between the three branches of the federal government and between states and the federal government. This power-sharing arrangement is designed to prevent any constitutional entity from gaining power beyond what the Constitution grants.

Unfortunately, for a century and one-half, all three branches of the federal government have accumulated power at the expense of the states. To control this federal overreach, Article V of the Constitution delegates to State legislatures the right to amend the Constitution by calling for a Constitutional Convention.

While a Constitutional Convention has never been approved by the states, it is a viable option. Under Article V, upon application of the legislatures of two-thirds of the several states, (34), Congress must call a Convention for the purpose of proposing amendments to the Constitution. If the Convention’s proposals are ratified by three-fourths of the states, those Amendments become part of our Constitution, notwithstanding the objections of the federal government.

This state convention process cannot be denied, vetoed, or regulated by Congress, the president, or the governors of the respective states. The Convention is totally controlled by the selected delegates. If state legislatures believe that a massive, overreaching, debt-ridden, dysfunctional federal government is not operating within the framework of our Constitution, it is their duty to act.

If the states fail to call a Convention, or the federal government thwarts the process, individual states have other options to control federal overreach

If a Constitutional Convention fails, or the federal government obstructs it, individual states can protect the liberties of their citizens. All state actions to protect liberty must be peaceful and non-violent, otherwise, they give the federal government the excuse it needs to crush states and citizens as “domestic terrorists,” and impose martial law.

State Actions to challenge Federal overreach and preserve state sovereignty

States acting individually or as a group of states, have several peaceful ways to protect personal liberties from federal overreach. The greater the number of states participating in the freedom-seeking effort, the greater the chance of its success. If the 20–27 so-called “red” states acted together, they will have the leverage to seriously negotiate over the scope of federal power. A state’s primary options:

Non-Cooperation: Martin Luther King used non-violence and non-cooperation to achieve justice for all in the U.S. Gandhi used these tactics to challenge the British Empire. States wanting a smaller federal government and to protect the constitutional rights of their citizens, could, as a group, voluntarily take a non-cooperation stance on federal programs.

Presently, states and local governments participate in 2200 federal programs and administer most major, domestic programs, e.g., hazardous waste, water pollution, labor, education, child nutrition. These grant programs allow the federal government to induce states to implement federal programs that could not be enacted by Congress. The states would merely refuse to administer any federal programs. Since the federal government cannot commandeer a state’s resources, the federal government would have to administer its laws in the non-cooperating state. While the states may lose the federal funds associated with these programs, the states would no longer have to administer programs that are costing them substantially more money than they receive.

The federal government certainly could administer a few of its programs in a few states, but if all the “red” states joined together and refused to cooperate on a large number of programs, the federal government would need to negotiate with the states on a power-sharing arrangement if it wanted those programs administered.

State Personal Liberty laws: From the founding of the Republic to the Civil War, abolitionists persuaded states to enact Personal Liberty Laws to protect fugitive slaves. These laws were grounded on the principle that states could protect individuals within their borders. To avoid the federal supremacy clause rendering inconsistent state laws void, the States enacted laws making it difficult for bounty hunters to capture fugitive slaves by denying them state resources, e.g., bounty hunters could not hold fugitive slaves in local jails, and the imposition of high court costs to secure the “legal transfer” of a fugitive slave substantially reduced the value of the bounty.

Today, to maneuver around the Supremacy Clause, states would enact laws expanding the civil rights of those living in a state. A few current examples. Washington State. has enacted stronger protections against warrantless searches than the federal constitution. Eight blue states and hundreds of cities have enacted Sanctuary laws to protect immigrants from federal prosecution. One state is proposing to prohibit federal law enforcement officers from arresting or detaining individuals solely on the basis of a civil immigration detainer. On the “red” side of the ledger, there are three states and over 230 counties in 19 states that have enacted Sanctuary laws to protect the constitutional rights of gun owners.

The most widespread use of Personal Liberty Laws is found in the states that have legalized marijuana, a substance still considered illegal under federal criminal law. Recreational use is legal in 11 states. Thirty-five states have legalized it for medical use. Only five states follow federal law. These states prove states cannot be forced to implement federal law. If the federal government wants marijuana laws implemented in forty-six states, it will have to do it itself.

As Free States expand personal liberty protections for citizens, it becomes more difficult for federal power to crush the individual. New types of Personal Liberty Laws are needed to protect citizens in the 21st century, just as they protected fugitive slaves from bounty hunters.

The federal government will not restrain its thirst for power. It will not restrain federal law enforcement from targeting citizens who exercise constitutional rights deemed objectionable by the federal government. Only the states can now save the Republic.



William Kovacs

Author of Devolution of Power; Reform the Kakistocracy; The Left's Little Red Book; opinion writer, formerly SVP US Chamber, Chief Counsel on Capitol Hill