Tomorrow begins a new semester, and I’ll be teaching Constitutional Law. My course, co-taught with my colleague Peter Rosenblum, is not like the constitutional law courses I took in law school. We spend the first half of the semester reading Aristotle, Montesquieu, the Federalists, the anti-Federalists, the state constitutions, the U.S. Constitution, and Hannah Arendt. We ask: What is a constitution? We probe the core of the American effort to create a constitution that would guarantee freedom while protecting against tyranny and corruption.
What a time to be teaching constitutional law, at a moment when claims of unitary executive power are met with a more austere conflict between federal and state power than has existed since the 1960s. Does the federal government have unlimited power to impose its will on the states? Do states have the constitutional authority to enforce their laws against federal officers who violate them? These are not abstract questions. They are the questions that arise when power claims necessity, when executive action presses beyond law, and when ordinary legal remedies prove insufficient.
The American Constitution was never perfect. Its most obvious flaw was the shameful compromise with slavery. And the Constitution itself is no guarantee of freedom. It must be honored and defended. When Benjamin Franklin was asked what kind of government the Constitution would bring about, he answered: “A Republic, if you can keep it.” Keeping it has never meant obedience alone. The Constitution endures only through vigilance, resistance, and — when necessary — civic courage.
Our present constitutional emergency begins when force is severed from law — when masked and unidentified federal agents are deployed in democratic cities, evade accountability, and act as instruments of presidential will rather than constitutional authority. Some defenders argue that Immigration and Customs Enforcement (ICE) and other federal enforcement units are legitimate arms of federal law; technically, this is correct. But the use of masks and anonymity, the refusal to permit ordinary state access and oversight at crime scenes, and the clear politicization of ICE enforcement operations in democratic cities fundamentally undermine that claim. The need is not to abolish ICE, but to return it to lawful accountability and to insist that all law enforcement — federal and state — operate transparently, guarantee due process and other constitutional rights, and uphold the rule of law.
One core feature of the United States Constitution is its realism. As James Madison wrote in Federalist 51, the Constitution does not assume that men are angels. “If men were angels, no government would be necessary.” The great innovation in the United States Constitution is that it sought to develop multiple checks and balances–institutional levers–designed to allow for the protection of freedom even in the event of bad actors. As Madison so perceptively warned:
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Madison is right that the primary control upon a government that would assume tyrannical powers is the people. He was equally astute to recognize that auxiliary precautions are needed.
The beauty of the United States Constitution is that it layers so many auxiliary protections into the governing framework. These include not only the separation of powers, but also the federalist structure. The U.S. government is constitutionally limited to enumerated powers — it may act only where authority is specifically granted, with all remaining powers reserved to the states or the people. Congress may legislate only within its expressly granted authorities; the executive may act only to carry out those laws and constitutional duties; and the judiciary may decide only the cases and controversies the Constitution authorizes. All other powers are specifically reserved to the states.
What the founders created was a system of dual sovereignty. We can think of it as a system of competing sovereignties. The federal government and the state governments govern the same people and the same territories at the same time. Neither is merely a “subdivision” of the other. This structural tension — coexistence without subordination — is what gives American federalism both its instability and its freedom-preserving power.
The refusal of any single and simple locus of sovereignty in the United States Constitution is, Hannah Arendt argued, the “greatest American innovation in politics.” She understood the governing federalist principle of the Constitution to be the “consistent abolition of sovereignty.” No one — no person, no institution, not even “the people” — was sovereign in the United States.
Arendt argues this consistent abolition of sovereignty wasn’t just an idea — it had its real basis in American experience. She cites the Mayflower Compact, in which religious and criminal exiles coming to America created a constitution on the ship before landing. This act of self-governance, in which a people arrogated to themselves the power to govern themselves, was unprecedented. And it informed the spirit of republican self-government that inspired local town hall governance in Colonial America.
The constitutional design I teach my students is not an antique. It was built for moments like this one. The federal government is making extraordinary and violent claims for nearly untrammeled sovereignty over the states. The states, after decades of ceding their constitutional powers, are beginning to wake up and claim their own constitutional authority. The stage is set for a conflict that ultimately will be decided in the courts and at the ballot box. The outcome is not certain, but the outlines of the conflict are coming into view.
Yet in a recent New York Times column, David French — one of my favorite columnists — argues that the rule of law is failing precisely because there is no realistic way for states to hold federal actors accountable — even when federal force kills. French argues that in response to the killing of Renée Nicole Macklin Good — and now the unconscionable murder of Alex Jeffrey Pretti — the Constitution offers no remedy, only resignation.
I understand French’s worry, and he is identifying a real problem. When federal executive power increasingly operates through force and claims practical immunity for its agents, the legal mechanisms meant to restrain it depend less on doctrine than on the willingness of state institutions to confront power. The danger is not that the Constitution lacks tools to confront unbridled federal power, but that those tools atrophy when courts, states, and citizens treat enforcement as too risky to attempt. And French is correct that, as of yet, the auxiliary institutions in which Madison placed so much hope have been dormant. But the failure of our federalism institutions does not mean that there are no constitutional means to fight back. That conclusion misunderstands federalism. The states were not created to defer when federal power overreaches. They were created to resist it.
If the auxiliary precautions Madison described appear ineffective today, it is not because they no longer exist. It is because they have not yet been exercised.
Across the country, ordinary citizens are already taking risks — publicly, nonviolently, and conscientiously — to resist what they experience as lawless federal power. They are blowing whistles, honking horns, videotaping abuses, and insisting that federal power be held accountable. These civil disobedients are, at times, interfering with law enforcement — they are breaking the law. But civil disobedience gains its force precisely because it breaks the law in the name of a higher law: the Constitution, in response to a constitutional emergency. In Minnesota, those engaged in civil disobedience are doing so not as random acts of defiance but as part of an organized claim that the laws they confront are themselves unconstitutional and that unaccountable federal force has exceeded its lawful bounds.
Hannah Arendt understood such civil disobedience not as a rejection of constitutional order, but as one of its oldest American practices: a way the people remind institutions of the limits of authority when formal remedies fail. In the 1960s, civil disobedience summoned the federal government to enforce constitutional rights against the intransigence of the states. Today, civil disobedience is a call to the states to reassert their constitutional power to protect the rights of Americans against federal overreach. In both instances, civil disobedience is a fundamental right of self-government, the way that organized minorities can dissent from unjust and unconstitutional tyranny of the majority.
The importance of civil disobedience as a right of collective dissent is why Arendt named “civil disobedience” — along with federalism — as one of the core constituent powers that could restrain tyranny in the United States. It is in moments like these that civil disobedience emerges as movements of “organized minorities” to take a “stand against the government’s policies even if they have reason to assume that these policies are backed by a majority.”
The bravery of the citizens in Minnesota stands in stark contrast to the hesitation of politicians — of both parties. It is high time for Republican politicians to grow a backbone and join the fight for constitutional freedom. For those who already know what is at stake, however, it is not enough for state officials to denounce federal overreach in press conferences or social media posts. Rhetoric carries no constitutional weight. Federalism is exercised through action: investigations, indictments, arrests, refusals to cooperate, and the willingness to force courts to decide questions they would prefer to avoid.
French is right. These actions will be challenged in court and in the streets. They may well be removed to federal court. They may fail, but there is also a chance of success. The Constitution confers no absolute immunity or absolute authority on federal police. But even if acts of institutional resistance do fail, failure after confrontation is not the same as acquiescence through silence.
“A republic, if you can keep it,” Franklin warned. Keeping it has never meant obedience alone. It has meant judgment, resistance, and the willingness — by citizens and states alike — to accept risk in defense of constitutional limits. When federal power claims necessity and immunity, and when courts hesitate, the burden of constitutional maintenance shifts downward. That burden now rests with the states — and with the people they claim to represent.
