In hindsight, the Founders placed too much trust in the states. Many states not only proved incapable of protecting individual liberty, they proved they could and would energetically suppress the exercise of the most basic rights, including the right to free speech. The Civil War amendments were intended in many ways to close this loophole, to guarantee protection of the “privileges and immunities” of citizenship even from the power of state and local governments.

Thus, healthy federalism grants wide authority to the states to regulate health care, fashion environmental policy, create economic incentives, and establish pension plans—to do all the things that governments do (aside from those functions that are reserved to the federal government or that conflict with federal authority). Healthy federalism does not, however, grant states the power to restrict individual liberty more than the Bill of Rights allows. No matter where they live, all citizens should enjoy a certain minimum level of guaranteed rights. States can grant more liberty than required by the Bill of Rights, but they cannot grant less.

French, David A. . Divided We Fall (p. 228). St. Martin’s Publishing Group. Kindle Edition.

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