Posted: Sep 25, 2022 12:01 AM
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In the wake of the Dobbs decision sending abortion regulations back to the states, the nation has been reminded of a fundamental truth of U.S. history and government: matters of individual liberty are not the sole province of the U.S. Constitution or of the federal government. However, since the Supreme Court expanded the reach of the U.S. Constitution into areas of individual liberty in the 1960s, Americans have increasingly seen liberty as exclusively arising from or protected by the Bill of Rights. This perception contradicts both the history of liberty in the United States and the structure of federalism built into the American constitutional scheme.
Federalism creates separate and autonomous governing entities between state and federal governments. Each possesses a distinct realm of sovereignty and legal authority, but a state’s laws exert a substantial and underrecognized impact on individual liberty within its borders. Consequently, an understanding of liberty in America requires understanding how state laws impact that liberty. And achieving this understanding can