Who decides government and rights

Authority over government and rights in the United States is split across the federal Constitution, Congress, the federal courts, fifty state constitutions and legislatures, voters in the states that allow initiatives, and 90,837 local governments counted in 2022. The level that decides depends on the question: a city charter can be changed by local voters, a state constitution often by statewide vote, and the federal Constitution only by two thirds of Congress and three fourths of the states. This page maps who decides what, so a priority or proposal can be pointed at the body that can act on it.

In plain words

Rules about government come in layers, like a stack.

At the top is the U.S. Constitution. It is very hard to change on purpose. Next are federal laws, which Congress passes. Then come state constitutions and state laws. In about half the states, voters can change some of those rules directly by signing petitions and voting. At the bottom are counties, cities, towns, school boards, and special districts, which make their own rules within limits the state sets.

Courts sit beside the stack. When someone says a rule breaks a constitution, a court decides.

So when you want something about government to change, the first question is: which layer is it on?

Defined terms

Amendment. A formal change to a constitution’s text. The federal process is set by Article V.

Judicial review. The power of courts to decide whether a law or government action conflicts with a constitution and to refuse to enforce it if it does.

Incorporation. The doctrine under which most of the federal Bill of Rights applies to state and local governments through the Fourteenth Amendment’s Due Process Clause.

Initiative. A process in which voters propose a law or constitutional amendment by petition and then decide it by ballot.

Popular referendum. A process in which voters, by petition, can force a public vote on a law the legislature has already passed.

General-purpose and special-purpose government. Counties, municipalities, and townships are general-purpose governments; school districts and special districts (water, fire, transit, and similar) are special-purpose. See jurisdictions.

The federal Constitution and its amendment process

Government and rights at the federal level rest first on the Constitution’s text, which ordinary legislation cannot override. Article V provides that Congress may propose amendments “whenever two thirds of both houses shall deem it necessary” (or call a convention on application of two thirds of the state legislatures), and that amendments take effect when ratified by “the legislatures of three fourths of the several states” or by conventions in three fourths of the states.⁠¹

That threshold is the single most important fact about who decides federal rights. No majority, however large, in a single election can change the First Amendment’s text, which provides that “Congress shall make no law” abridging “the freedom of speech, or of the press” or “the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.⁠²

The Tenth Amendment reserves to the states, or to the people, powers “not delegated to the United States by the Constitution, nor prohibited by it to the states”.⁠³ The Fourteenth Amendment, adopted after the Civil War, forbids any state to “deprive any person of life, liberty, or property, without due process of law” or to “deny to any person within its jurisdiction the equal protection of the laws,” and its Section 5 gives Congress “power to enforce, by appropriate legislation” those guarantees.⁠⁴

Congress

Government and rights questions reach Congress in three ways. First, Congress writes election rules within limits: Article I, Section 4 leaves the “times, places and manner of holding elections for Senators and Representatives” to state legislatures but allows Congress to alter those regulations by law.⁠⁵ Second, Congress enforces civil rights under the Fourteenth and Fifteenth Amendments. Section 2 of the Voting Rights Act, for example, bars any voting “standard, practice, or procedure” applied “in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”.⁠⁶ Third, Congress creates and directs federal agencies, and decides how much authority to delegate to them.

Federal courts

Government and rights disputes are often resolved by courts rather than by legislatures, which is a source of both protection and controversy.

Incorporation. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights limited only the federal government. After the Fourteenth Amendment, the Court gradually applied most of its protections to the states through the Due Process Clause, rights by rights rather than all at once. Some provisions remain unincorporated, including the Fifth Amendment’s grand jury requirement (Hurtado v. California, 1884) and the Seventh Amendment’s civil jury right.⁠⁷ This is why a city council is bound by the First Amendment even though the amendment’s text names only Congress.

Rights beyond the vote. In West Virginia State Board of Education v. Barnette (1943), the Court said fundamental rights “may not be submitted to vote; they depend on the outcome of no elections”.⁠⁸ That sentence describes a deliberate allocation of authority: on protected questions, courts, not majorities, have the final word, unless the Constitution is amended.

Election law. In Shelby County v. Holder (2013), the Court held that the Voting Rights Act’s Section 4 coverage formula was unconstitutional and could “no longer be used as a basis for subjecting jurisdictions to preclearance”; it did not rule on Section 5 itself.⁠⁹ The decision shifted authority over many election rule changes in formerly covered jurisdictions from advance federal review to after-the-fact litigation.

The administrative state. In Loper Bright Enterprises v. Raimondo (2024), the Court held that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous,” overruling Chevron.⁠¹⁰ Who interprets ambiguous federal statutes, agencies or judges, is itself a government and rights question, and the Court reassigned it.

State constitutions and legislatures

Government and rights are often defined more broadly, and changed more easily, at the state level. Every state has its own constitution with its own bill of rights, and state courts interpret those texts independently. A state may protect a right more than the federal Constitution requires. Montana’s constitution provides that “the right of individual privacy is essential to the well-being of a free society” and shall not be infringed “without the showing of a compelling state interest”,⁠¹¹ language with no direct federal counterpart.

States also decide most of how elections run: registration, voting methods, ballot design, and the drawing of district lines, subject to federal law and the federal Constitution. See access and exclusion.

Voters directly: initiatives and referendums

Government and rights can be changed by voters directly in many states, which is where public priorities have the most legal force. According to the National Conference of State Legislatures, 24 states plus the District of Columbia and the U.S. Virgin Islands have an initiative process (Mississippi’s is counted but no longer valid), 18 states list a constitutional initiative (17 currently usable, excluding Mississippi), and 23 states have the popular referendum.⁠¹² There is no national initiative or referendum in the United States. See participation between elections.

Local governments

Government and rights at the local level operate within powers granted by each state. The U.S. Census Bureau counted 90,837 local governments in 2022: 3,031 counties, 19,491 municipalities, 16,214 townships, 12,546 independent school districts, and 39,555 special districts. By 2025 the count rose to 91,438, mostly because of new special districts in Colorado, Florida, Nebraska, and Texas.⁠¹³ Each of these bodies has rules for public meetings, records, elections, and citizen input, usually set by state law and local charter. For most people, the government they deal with most directly is one of these.

Comparative notes

Government and rights are allocated differently elsewhere, which shows that the American arrangement is a choice, not a necessity.

• Switzerland lets 100,000 voters propose a constitutional change by collecting signatures within 18 months, and 50,000 voters can force a referendum on a new federal law by collecting signatures within 100 days of its publication; constitutional amendments approved by parliament go to a mandatory nationwide vote.⁠¹⁴
• Germany goes the other way. Article 79(3) of its Basic Law makes amendments affecting the principles in Articles 1 and 20 “inadmissible”; Article 1(1) declares that “human dignity shall be inviolable”.⁠¹⁵ Some protections cannot be changed by any majority at all.

The United States sits between these: no national initiative, but a federal amendment process that, while difficult, has no unamendable core of rights.

Evidence

Government and rights authority on this page is described from primary constitutional and statutory text, Supreme Court opinions, Census Bureau counts, and NCSL’s compilation of state processes. The evidence page covers what research shows about whether these institutions respond to the public.

Competing interpretations

Government and rights authority is contested at almost every layer.

• Courts as guardians or as unelected policymakers. Supporters of strong judicial review argue it protects minorities and individuals from majorities, as Barnette describes. Critics from several directions argue that the Court decides moral and political questions under the label of interpretation, and that the remedy for contested questions should be elections or amendments.
• States as laboratories or as patchworks. Federalism allows variation and local fit; it also allows rights and access to differ by state. Which of these one emphasizes often depends on which states one trusts.
• Direct democracy as accountability or as risk. Initiatives let voters act when legislatures will not. Critics note that initiatives can be costly to qualify, hard to amend, and sometimes aimed at minorities. See participation between elections.

Application to this framework

Government and rights proposals in My Vote Forward would carry the authority that can act on them, as required for every proposal. A participant interested in redistricting commissions, term limits, or open meeting rules would see whether the change is statutory, constitutional, local, or federal, and whether voters in that state can act directly. Because most of these changes unfold over months or years, the participation over time chapter applies: an issue can move from priority to proposal to qualified ballot measure to an official vote, each step owned by a different body.

Unresolved questions

• How should a participation tool present questions whose answer belongs to a court rather than to voters?
• Would routing priorities to the correct layer of government increase responsiveness, or would it mostly show how few levers ordinary people hold at the federal level?
• How should overlapping jurisdictions be shown when a single resident lives inside a county, a city, a school district, and several special districts at once?