Odious Monopolies: Founding-Era Anti-Monopoly Principles as a Basis for State and Municipal Antitrust Enforcement

Fewer and fewer companies run more and more of your life, and a handful of states are proving the laws to stop them still work.

Illustration: Elena Lacey; Getty Images

This country has a monopoly problem, and you pay for it every month. Four companies put 85% of the country’s beef on the table. Since 1985, nearly 10,000 banks have vanished, and four now hold roughly 40% of all bank assets. These few firms set the price and you cover it, and their profits are higher than ever. Most of the power to change that belongs to your attorney general, your governor, your legislature, and your city council, and where the federal government won’t act, the states still can.

The states have held these powers since the founding, and they have gained more ever since. A state can refuse to hand a dominant company your tax dollars, block the merger that would corner your local market, bar a lawbreaker from public contracts, and make a company that gouged its customers give the money back. When a state uses them, your costs come down and the local business trying to compete against a giant gets a fair shot. Some states have started. Most have not. All of this is right here for us to do, and we can dial it up.

That power comes in two halves. The first is the one the founders wrote about, a government handing a favored company a privilege its rivals can’t get. The second is the one you picture when you hear the word monopoly, a private company grown large enough to set prices and crush competitors. The states own the tools for both, and almost nobody is asking them to use either.

The monopoly the founders feared is the one many legislatures hand out every session. Maryland’s 1776 Declaration of Rights, in Article 39, reads: “That monopolies are odious, contrary to the spirit of a free government, and the principles of commerce, and ought not to be suffered.” North Carolina’s declaration that same year called perpetuities and monopolies “contrary to the genius of a free State, and ought not to be allowed.” Thomas Jefferson, reading the draft Constitution from Paris in December 1787, wrote to James Madison that it needed a bill of rights including a “restriction against monopolies.” Madison answered that monopolies “are justly classed among the greatest nuisances in Government.”

A monopoly, to them, meant a privilege the government granted: a corporate charter, a royal patent, an exclusive license, the tea monopoly the Crown gave the East India Company, whose tea colonists threw into Boston Harbor. The danger was the government picking the winner.

Washington state picked one in November 2013. Governor Jay Inslee called a three-day special session and signed the largest tax break any state has ever given a single company, an estimated $8.7 billion for Boeing through 2040, to keep the 777X in Everett. Seven years later Boeing moved all of its 787 assembly to South Carolina anyway. The state constitution that Inslee swore to uphold, in Article 12, Section 22, reads: “Monopolies and trusts shall never be allowed in this state.” Wisconsin did the same thing with Foxconn, promising nearly $3 billion in 2017 for a factory and 13,000 jobs. When the jobs never came, the state renegotiated the deal down to $80 million for 1,454 jobs and wrote in the power to recover every dollar if Foxconn defaults.

That is the first half of the fight, and every piece of it belongs to officials you can name. The governor signs the subsidy and runs state purchasing. The legislature votes the tax break. The mayor and the council award the contract and the abatement. When any of them hands a dominant company money its competitors can’t get, they are doing exactly what Maryland called odious. Refusing to do it, and clawing back what has already been given, is antitrust in the oldest American sense.

The second half arrives without any government help. Adam Smith saw it in 1776. “People of the same trade seldom meet together, even for merriment and diversion,” he wrote, “but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” A century later, as the railroad and oil trusts took hold, Senator John Sherman argued for the antitrust law that still carries his name. “If we will not endure a king as a political power,” he said in 1890, “we should not endure a king over the production, transportation, and sale of any of the necessaries of life.”

The states got there before Sherman did. Kansas passed a state antitrust statute in 1889, and roughly a dozen states had antitrust laws or constitutional bans on the books before Congress passed the Sherman Act in 1890. Washington state wrote its ban into the constitution it adopted in 1889, and it ordered the legislature to enforce the ban “by adequate penalties.” In 1892, Ohio’s attorney general, David Watson, used state corporate law to force the Standard Oil Trust to dissolve, 19 years before the federal government managed the same thing.

Ohio’s case also shows the limit of one state acting alone. Standard Oil reincorporated in New Jersey, beyond the reach of an Ohio court, and kept operating. A single state can win a judgment against an interstate company and still lose, which is why the enforcement that works now is coordinated, many attorneys general moving together.

Franklin Roosevelt understood the stakes as political. In a 1938 message to Congress he warned that “the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic State itself. That, in its essence, is Fascism.” The conservative legal scholar Daniel Crane has documented how the Allies treated breaking up German cartels as part of dismantling the Nazi state after the war. Concentrated private power and captured government arrive together.

We are living inside the version Roosevelt warned about. Two brewers account for close to two-thirds of the beer Americans drink, and more than three-quarters of American industries have grown more concentrated over the past two decades.

None of it is free to the people living under it. A hospital with no competitor within reach charges about 12% more than one facing four or more rivals. Rent-pricing software that a dozen states and the federal government are now suing over adds roughly $70 a month for tenants in the buildings that use it.

Other wealthy democracies refuse to run their economies this way. The European Union can fine a company up to a tenth of its worldwide revenue, and it uses the power. It fined Apple 1.8 billion euros in 2024 for abusing its dominance in music streaming, and under a new competition law, the Digital Markets Act, it fined Apple and Meta again in 2025 and ordered both to change how their platforms operate. A federal civil monopolization case carries no fine at all. The Justice Department can ask a judge for an order and nothing else.

So the second half falls to the states too, and here the attorney general is the most visible tool. When the Justice Department settled its monopoly case against Live Nation and Ticketmaster in the middle of trial this March, 33 states and the District of Columbia refused the settlement and kept litigating, and on April 15 a New York jury found the company had broken the law. In December 2024, a court in Washington state blocked the Kroger-Albertsons grocery merger under state law, while Colorado pressed a case of its own, and the companies abandoned the deal. The Washington state attorney general also pressured more than 230 national franchise chains to drop the no-poach clauses that kept their workers from moving to a better-paying store.

The attorney general only enforces what the legislature writes. Washington state in 2025 became the first to require any company filing a federal merger notice to file the same notice with the state, so its attorney general sees the deals the federal agencies wave through. Colorado enacted the same law two months later, and California’s version has passed the state senate. States are the last line on noncompete agreements, which trap roughly one in five American workers, since a federal judge struck down the Federal Trade Commission’s national ban in 2024. New York’s legislature has repeatedly passed a bill that would import Europe’s approach and let the state go after a company for abusing a dominant position, treating a firm as dominant at a 40% market share. And a legislature can set the penalty. California raised its antitrust fines last October to a $6 million cap per violation, and a company that large treats a cap like that as a cost of doing business. A penalty set by the company’s sales inside the state, with every dollar the conduct earned handed back on top, is one bill away in any state that wants it. The money funds state programs.

The governor runs the agencies that approve mergers in banking, insurance, utilities, and hospital care, and can bar a company that has broken antitrust law from state contracts. City governments matter more than people assume, because a city is often one of the largest buyers in its region and it can sue for damages as a purchaser in its own right. When RealPage’s rent software drew scrutiny, San Francisco, Philadelphia, Minneapolis, and San Diego moved to ban landlords from using it. Chattanooga built a municipal broadband network that competes directly with the cable companies.

None of this is easy, and the weaknesses are legitimate. The remedy in a monopoly case still comes from a federal judge, and judges have disappointed. Thirty-eight states and the Justice Department asked the court in the Google search case to make the company sell off Chrome; in 2025 the judge ordered data-sharing and a ban on exclusive contracts instead. The old state constitutional bans, including some of the 1776 language, were written against government-granted monopolies, and courts have read them that way, so they do more work against a rigged contract than against a private giant. And there is a political objection: a poll this spring, paid for by a tech-industry group whose members include Amazon and Google, found that only 13 percent of Americans call breaking up large companies a top priority, because people care first about prices.

That last objection answers itself once you attach a dollar value to it. The hospital bill, the rent, the ticket fee, the grocery aisle: every one of these is a price, and every one is shaped by whether a state uses the power it has. Enforcement improves the environment for both consumers and local business. Antitrust is the affordability agenda. When a broad YouGov survey defined the terms plainly, 69 percent of Americans said they support antitrust laws, most Republicans among them.

We can do this. Both halves of the fight are fully within the powers our states and cities already hold, written into constitutions in 1776 and 1889 and into statutes passed last year. The only thing stopping us is public demand.

So how do we build it? Every successful social movement follows patterns, and those patterns map well from one fight to the next. At The Existentialist Republic we have a model for replicating them. The difference between a movement that peters out and one that keeps growing stronger until change becomes inevitable is that winning movements educate, activate, recruit, and repeat. We publish booklets and books on how to do exactly that, and on many other subjects, as free PDFs and as physical copies you can buy from our store. I wrote this because breaking corporate power from your own statehouse and city hall is one of the most effective fights almost nobody is having, and the laws to wage it are already written.

---

Do you value The Existentialist Republic? How about do you value our community $0.22 worth? Because that’s all it is to fund the ER for a year. Don’t let activism be the reason you skip a meal or miss rent. But if you can be a paid subscriber then we can keep expand the reach of this fascism destroying machine, together! - Chris

Buy The Team Some Coffee

---

The Existentialist Republic Library

By clicking this sentence you can buy a physical copy of my book “Toppling Tyrants: A Field Guide to Removing Fascism in America”

You can get a FREE PDF of the book in the BMAC shop for $0.00 by clicking on this sentence.

The Existentialist Republic Library

Conservatism: America’s Personality Disorder — physical copy / free download

Intro to Soft Secession — physical copy / free download

Oppositional Federalism and You — physical copy / free download

Toppling Tyrants: A Field Guide to Dismantling American Fascism — physical copy / free download

Grab Them By The E.A.R.R.: How to Get Politicians to Do What You Want — physical copy / free download

Being Dangerous: Go From Activist to Operative

Activism Journal

More Free downloads:

Soft Secession: 100 Policies That Pass

All Four Completed Model Legislation Bills

The Opposition Guide to Tax Warfare

Six-Panel Soft Secession Brochure

Prosecution Memo: Jonathan Ross

Bumper Stickers