In all of the founding documents, the 13 states are referred to in the plural. In the concluding paragraph of “The unanimous Declaration of the Thirteen united States of America,” which is always referred to as merely “The Declaration of Independence,” it says that the 13 colonies or states “are, and of Right ought to be Free and Independent States.” After the Revolutionary War, King George III of England signed a peace treaty with the United States, which was defined as the individual 13 colonies. In the Articles of Confederation and Perpetual Union,” which became effective on March 1, 1781, after being ratified by all 13 of these colonies, it says that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” Even in the Constitution, the United States is referenced with the plural words “them” and “their.”
Federalism
The system of government set up by the Constitution was not an all-powerful central state. It was designed to be a loose confederation of sovereign states with a weak central government. The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government — not the other way around. Federalism is simply the division of power between the national and state governments. The states, via Articles I through III of the Constitution, delegated, not surrendered, certain powers to the three branches of the national government. There are about 30 enumerated congressional powers listed throughout the Constitution. Everything else is reserved to the states. As James Madison (1751–1836) — the Father of the Constitution — so eloquently explained it:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
The Ninth and Tenth Amendments reiterate that all rights and powers not delegated to the federal government are retained by the people and the states.
Differences
Although the central government of the United States has grown into an omnipotent monstrosity that has severely eroded state independence and sovereignty, the states are still vastly different in a number of ways that have nothing to do with geography or resources.
Consider how the states handle alcohol. In the states of Alabama, Idaho, New Hampshire, North Carolina, Pennsylvania, Utah, and Virginia, the government owns and operates all the liquor stores. Private liquor stores are strictly prohibited. In the states of Iowa, Maine, Michigan, Mississippi, Montana, Ohio, Oregon, Vermont, Wyoming, and West Virginia, alcohol is controlled by the government on the wholesale level. Retail liquor stores can purchase distilled spirits only from the government. In most states, distilled spirits can be purchased only at a liquor store. Grocery stores that sell distilled spirits must have a stand-alone location or an attached location with its own entrance. In most states, alcohol sales are prohibited or restricted in some way on Sundays, and on the other days, state or local governments decide at what times alcohol can be sold or served. Some states still have “dry” counties, cities, or towns where no alcohol can be sold.
There are major differences between the states when it comes to other vices as well. The medical use of marijuana is legal in 39 states, but the recreational use of marijuana is legal in just 24 states. Both are legal in Washington, D.C. Neither are legal in 11 states. Prostitution is legal in certain counties in Nevada but remains illegal in every county of every other state. Casino gambling is legal in some states, but in other states it is prohibited, and in still other states only American Indians are allowed to operate casinos.
The majority of criminal offenses fall within the jurisdiction of the individual states. What may be considered a crime in one state might not be classified as a crime in another state. From the very beginning, each American colony had its own legal system based on English common law. This did not change after the Constitution was adopted. Each state has its own set of policies and procedures for divorce, alimony, property division, and child custody. Gun-control laws are different in every state. In states that have a minimum wage that is higher than the federal minimum, their minimum wages all differ.
Even a joint federal-state program like unemployment compensation or food stamps still allows for a variety of differences between the states. The unemployment tax rate, the taxable wage base, and especially the benefits paid can be quite different depending on which state one lives in. In seven states the weekly benefit is less than $300, but in two states, it is over $800. Monthly food stamp benefits are different in every state.
It is precisely because we have a federal system of government that the states can have such differences. This also allows for some or all of the states to adopt a good policy as they see fit without it being forced on them by the federal government. Sometimes, something good in one state is implemented by another. Such is the case of “right to try” medical-treatment laws.
The right to try medical treatments
Texas governor Greg Abbott recently signed into law a bill (SB984) that passed both houses of the legislature unanimously “relating to access to individualized investigational treatments for patients with life-threatening or severely debilitating illnesses.” This makes Texas the 15th state to pass the latest incarnation of a “Right to Try” law.
In May 2018, President Donald Trump signed into law the “Right to Try Act.” It allows terminally ill patients who have exhausted their government-approved options for medical treatment and can’t participate in a clinical trial to access “investigational treatments.” President Trump commented at the bill signing: “With the Right to Try law I’m signing today, patients with life-threatening illnesses will finally have access to experimental treatments that could improve or even cure their conditions.” Not exactly, Mr. President. The law was unnecessary because 41 states (including Texas in 2015) had already passed such laws, and the “Right to Try” movement was spreading across the country. And of course, the Constitution nowhere authorizes the federal government to have anything to do with any American’s medical treatment.
According to the Goldwater Institute — an Arizona organization that works “in state courts, legislatures, and communities nationwide to advance, defend, and strengthen the freedom guaranteed by the constitutions of the United States and the fifty states” — to be eligible for Right to Try, a patient must meet the following conditions:
- Be diagnosed with a life-threatening disease or condition.
- Have exhausted approved treatment options.
- Be unable to participate in a clinical trial involving the eligible investigational drug.
- Give written informed consent regarding the risks associated with taking the investigational treatment.
The treatments available under the law must meet the following conditions:
- Have completed an FDA-approved Phase 1 clinical trial.
- Be in an active clinical trial intended to form the basis of an application for approval or be the subject of an application for approval that has been filed with the FDA.
- Be in ongoing active development or production and not discontinued by the manufacturer or placed on clinical hold.
Right to Try should not be confused with the ability of physicians to legally prescribe treatments that are “off-label,” which means prescribing an FDA-approved treatment for a condition, dose, or population other than what the FDA originally approved.
In 2023, Texas expanded Right to Try to patients with chronic diseases that were not necessarily terminal illnesses, when it enacted SB773. The new Texas law (SB984) expands on this. Because of advances in medical innovations, it is now possible to use an individual’s genetic information to create an individualized treatment plan that cannot be subject to a clinical trial. According to the new law, a patient is eligible to access an individualized investigational treatment if the patient meets the following conditions:
- Has a life-threatening illness or severely debilitating illness.
- Has considered all other treatment options currently approved by the USDA.
- Has given written informed consent for access to the treatment.
- Has a physician’s attestation to the patient’s life-threatening illness and recommendation for an investigative individualized treatment.
The law exempts the “manufacturer of an individualized investigational treatment” and “any other person involved in the care of an eligible patient using the treatment” from lawsuits resulting from “any harm to the patient resulting from the treatment if the manufacturer or other person is complying in good faith with the terms of this chapter and has exercised reasonable care.” And here is the most libertarian part of the law: “An officer, employee, or agent of this state may not block or attempt to block an eligible patient’s access to an individualized investigational treatment that complies with this chapter and rules adopted under this chapter.”
But what if a patient has an illness that is not life-threatening or is only moderately debilitating? What if a patient has not considered all other treatment options currently approved by the USDA? And what about patients in other states that only have first-generation Right to Try laws? What if they have not completed or are not enrolled in a clinical trial? What good are Right to Laws to them?
The real question
The real question here is not whether Right to Try laws increase medical freedom or save lives. It is obvious that they do both. The real question here is simply this: What is the government doing telling doctors and their patients what drugs and medical treatments that they are allowed or prohibited to try? The right to self-medicate — alone or in conjunction with a physician — should be a natural right that government protects, not prohibits. It shouldn’t matter whether one has a chronic or acute disease or condition. It shouldn’t matter if one or all other treatment options have been exhausted. It shouldn’t matter whether a drug has had a clinical trial. It shouldn’t matter if an ailing individual consults a physician, a physician assistant, a nurse, a pharmacist, a psychologist, a chiropractor, a psychiatrist, or none of them. The point is that no sick individual should have to consult his state legislature about his treatment.
Medical freedom should be the default position. Why should Americans — who claim to live in the land of the free — have to get permission from their government to allow them to exercise medical freedom? Why do certain drugs have to be prescribed? Why are certain medications that don’t have to be prescribed only sold behind the counter? Why aren’t all medications sold over the counter (OTC)? Why do Americans think that it is the government that knows best when it comes to their medications, health care, or medical treatments?
Medical freedom is part and parcel of bodily integrity and bodily autonomy. If there is one thing that the poorest person in the world has in common with the richest, it is that both of them own their own body. A poor individual may not have anything else, but he has himself. His body belongs to him. If it belongs to him, then it doesn’t belong to the federal government, the state legislature, the county health department, the local pharmacy, or a physician. And if a person’s body belongs to him, then he should have the right to do whatever he wishes with it, to it, or for it.
The right to try
The right to try principle should not just be limited to medical treatment. The freedom to take whatever medication one chooses in order to potentially treat an ailment is just one aspect of the freedom of consumption. If legal adults own their own bodies, then it follows that they should be able to consume any substance they choose in any way they choose in whatever quantity they choose and for any reason. Consider three other substances that someone might want to consume.
The right to try includes the right to try alcohol. Every state denies legal adults under 21 the right to purchase alcohol even though they can vote, be drafted, join the military, get married, get divorced, adopt a child, run for office, enter legally binding contracts, engage in consensual sex with other adults, and purchase pornography. I pointed out earlier that in most states, alcohol sales are prohibited or restricted in some way on Sundays, and on the other days, state or local governments decide at what times alcohol can be sold or served. I also mentioned that some states still have “dry” counties, cities, or towns where no alcohol can be sold. The dangers of alcohol abuse are immaterial. In a free society, the right to try alcohol would be absolute.
The right to try includes the right to try raw milk. The FDA demonizes the drinking of pure, natural, unadulterated, raw cow’s milk because it is not pasteurized, and therefore it prohibits the interstate sale of raw milk. Only 12 states allow raw milk to be sold in stores. About 20 states allow the sale of raw milk only from farms. About 20 other states don’t allow raw milk to be sold at all. The real issue here is one of freedom, not health, safety, or nutrition. The pros and cons of drinking raw milk are irrelevant. In a free society, the right to try raw milk would be absolute.
The right to try includes the right to try drugs. The medical use of marijuana is legal in 39 states, and the recreational use of marijuana is legal in 24 states. Both are legal in Washington, D.C. However, both are illegal on the federal level. The federal government classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act (CSA) with “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use of the drug under medical supervision.” Possessing, growing, transporting, or distributing marijuana is a felony, with violations resulting in fines and/or imprisonment. But even in the states that have legalized marijuana, there are a myriad of government rules and regulations restricting its use. And of course other drugs like cocaine and heroin are illegal at every level of government. But the morality of drug use is inconsequential. In a free society, the right to try drugs would be absolute.
Laws that prohibit the buying, selling, or consuming of alcohol, raw milk, drugs, or any other substance are inconsistent with individual liberty, private property, and a free society. As the great Austrian economist Ludwig von Mises (1881–1973) once remarked: “If one abolishes man’s freedom to determine his own consumption, one takes all freedoms away.” What a person puts into his body might be untested, dangerous, experimental, unhealthy, destructive, or immoral, but it is an illegitimate function of government to concern itself with what someone eats, drinks, injects, smokes, snorts, breathes, inhales, swallows, or otherwise ingests as long as they are paying the bill for those things and not violating anyone else’s rights while they are ingesting any of them.
The right to try principle can and should be applied to a whole host of activities aside from consumption. What if someone wants to try gambling? They might be subject to fines or imprisonment or both. What if someone wants to try to sell an event ticket that is not needed? They might be charged with ticket scalping. What if someone wants to try to provide a service without getting a license? They might be fined or shut down by some state agency. What if someone wants to try to raise the prices at his business? They might be charged with price gouging. What if someone wants to try prostitution, either as a provider or a client? They might be subject to fines or imprisonment or both. What if someone wants to try to discriminate in hiring for his business? They might be investigated by the EEOC.
Actions that are peaceful, private, voluntary, and consensual should never be criminalized. As long as someone engages in conduct that doesn’t violate the personal or property rights of others, the government should just leave them alone.
This article was originally published in the October 2025 issue of Future of Freedom.
