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WATCH: A Crucial Line of Defense Against Government Abuse

July 5, 2022

Last month, I joined a panel hosted by the Federalist Society’s Regulatory Transparency Project to discuss state constitutions and how they provide robust protection against government overreach. The American framers didn’t give us one Constitution; they gave us 51, because each state has its own. 

This system of federalism offers, as Father of the Constitution James Madison wrote, “a double security…to the rights of the people.” In other words, the federal Constitution provides a floor of protection for individual rights, not a ceiling, leaving states free to protect those rights to an even greater extent. 

For example, state constitutions often provide greater protections for private property rights. Nearly two decades ago, the U.S. Supreme Court shocked the nation when it rubber-stamped a Connecticut redevelopment agency’s decision to take private homes away from lower-middle class homeowners in order to make the land available for corporate redevelopment projects. As justification, the Court maintained that anticipated tax revenue and “job creation” could justify this use (or abuse) of the eminent domain power. Around the same time, an Arizona city tried to seize a family-owned brake shop to make room for a hardware store. But the Arizona court of appeals refused to permit the taking, noting that “The federal constitution provides considerably less protection against eminent domain than our Constitution provides.”


State constitutions also have unique provisions that don’t exist in the federal Constitution. For example, nearly every state has a Gift Clause, which outlaws government gifts of taxpayer money to private entities. These were crafted in the 19th century when local governments frequently subsidized railroads, banks, and other corporations with taxpayer money, in hopes of stimulating economic development. Instead, these endeavors often led to waste, corruption, overbuilding, and economic crises, including the virtual bankruptcy of more than half a dozen states in the 1840s. As a result, between 1840 and 1912, almost every state amended its constitution to include limits on subsidies. In Arizona, courts have held that while governments can buy goods or services if they’re truly valuable purchases for the public, they can’t give away taxpayer money to support politicians’ pet projects.

This is why my Goldwater Institute colleagues spend so much time in state courts: state constitutions are an important line of defense against government abuse, and when the federal government fails to protect our freedoms, we have the states to fall back on. 

To learn more about the power of state constitutions, you can watch the webinar here. 

Christina Sandefur is the Executive Vice President at the Goldwater Institute. 



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