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Steve Kubby: ‘States’ Rights’ is an anti-libertarian concept

at Last Free Voice. It may or may not have something to do with

The following is published with the permission of the author, Steve Kubby. Steve Kubby is, of course, a highly respected longtime Libertarian activist, a former candidate for Governor of California, and a popular 2008 Libertarian presidential candidate.

“States Rights” is an Anti-Libertarian Concept

By Steve Kubby

The concept of “FEDERALISM” is properly used to describe a system of government in which sovereignty is constitutionally divided between the federal government and the states.

In contrast, the term “STATES’ RIGHTS” is a fraudulent and profoundly ANTI-Libertarian concept that has no other purpose but to deceive and rob us of our natural, inalienable, inseparable, non-transferable rights as human beings.

The Ninth Amendment says: “The numeration in the Constitution, of certain RIGHTS, shall not be construed to deny or disparage others retained by the PEOPLE.

In other words, just because the Constitution doesn’t mention a particular right, that doesn’t mean we don’t have that right — and those RIGHTS are retained by the PEOPLE, not the State or the Federal Government.

The Tenth Amendment says: “The POWERS not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States and governments have POWERS, but not RIGHTS. Only people can have rights. The US Constitution and Bill of Rights were conceived and written to limit government, not allow it to usurp our rights through some insipid oxymoron like “States’ Rights.”

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  1. Trent Hill Trent Hill June 30, 2008

    Most, if not all, people refer to States’ Rights as Federalism and vice-versa. States’ Rights/Federalism is protection of liberty and division of government–which is very libertarian.

  2. Fred Church Ortiz Fred Church Ortiz June 30, 2008

    I used the two terms interchangeably as well, until I was helpfully informed that I was a racist, homophobic bigot for doing so. Glad I dodged that bullet.

  3. G.E. G.E. July 1, 2008

    I agree that “states’ rights” is a poor choice of words. States do not have rights. Furthermore, it has been used as racist code.

    However, far too many “libertarians” are actually opposed to decentralism/federalism. I think the overwhelming support for this Heller decision demonstrates that. Yes, D.C. is not a state, but the implication is clear — by way of the “incorporation doctrine” and the non-ratified 14th amendment, the federal government can force states into obeying the second amendment, which was never intended to apply to the states.

    There is a right to keep and bear arms and there is a right to free speech, etc. But the federal government is not the one to enforce these rights against incursions by the states. These rights do not come from the Constitution; they’re inherent, and it is up to the people to assert them, not to look to D.C. for protection.

  4. pdsa pdsa July 1, 2008

    The Non-ratified 14th Amendment?

    The Constitution Of The United States Of America
    As Amended – Analytical Version
    House of Representatives Document: H.R. 110-50,
    published by the Government Printing Office,
    pursuant to H. Con. Res. 190, which was passed July 25, 2007

    Fourteenth Amendment
    Proposal and Ratification

    The fourteenth amendment to the Constitution of the United States was proposed to the legislatures of the several States by the Thirty- ninth Congress, on the 13th of June, 1866. It was declared, in a certificate of the Secretary of State dated July 28, 1868 to have been ratified by the legislatures of 28 of the 37 States. The dates of ratification were: Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (subsequently the legislature rescinded its ratification, and on March 24, 1868, readopted its resolution of rescission over the Governor’s veto, and on November 12, 1980, expressed support for the amendment); Oregon, September 19, 1866 (and rescinded its ratification on October 15, 1868); Vermont, October 30, 1866; Ohio, January 4, 1867 (and rescinded its ratification on January 15, 1868); New York, January 10, 1867; Kansas, January 11, 1867; Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Minnesota, January 16, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 25, 1867; Rhode Island, February 7, 1867; Wisconsin, February 7, 1867; Pennsylvania, February 12, 1867; Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 4, 1868 (after having rejected it on December 14, 1866); Louisiana, July 9, 1868 (after having rejected it on February 6, 1867); South Carolina, July 9, 1868 (after having rejected it on December 20, 1866).

    Ratification was completed on July 9, 1868.

    The amendment was subsequently ratified by Alabama, July 13, 1868; Georgia, July 21, 1868 (after having rejected it on November 9, 1866); Virginia, October 8, 1869 (after having rejected it on January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (after having rejected it on October 27, 1866); Delaware, February 12, 1901 (after having rejected it on February 8, 1867); Maryland, April 4, 1959 (after having rejected it on March 23, 1867); California, May 6, 1959; Kentucky, March 18, 1976 (after having rejected it on January 8, 1867).

  5. pdsa pdsa July 1, 2008

    GE, you cut directly to the chase, take the lead, but end up crossing the starting line, instead of finishing the race.

    However you do serve to remind, why persons who loudly attempt to justify their political world-view only upon “Original Intent”, are playing a Machiavellian strategy in an effort to avoid superseding text, that is blocking their intended path down a coercive road.

    It is an artful attempt to inflame the citizenry’s natural mistrust for politicians, served up as misdirection using soap boxes and megaphones, while the people’s liberty gets handed off in back-alley chicanery to good ole boy tin-horn tyrannical pols, so lame they couldn’t get electecd to a Federal Office.

    If people just think clearly about what is being asserted: that for some strange illogical reason, it is a bad thing to chain and muzzle individual state leviathans, to place a steel cage between them and our liberties. Just what the hell is wrong with restraining ALL Governmental entities in America far away from anyplace their ravening maws and grubby paws could get a hold of our birthrights?

    Kubby for the most part correct, because when states’ rights are asserted, it is generally motivated with a powermongrelised vision of inherent righteousness in their use of force to restrain others’ private acts , which they find personally offensive, or in the case of contemporary conservatives, they believe will result in the loss of control over consciously projected self-repressive methods at a most unpropitious time, and they will suddenly begin to do the soft-shoe routine in a public restroom facility.

    I don’t recall anyone ever laying down a states’ rights riff when discussing eminent domain.

    Anyone who claims to be a friend of liberty, should be clamoring for a full incorporation of the Constitution’s Bill of Rights to aid in the proper bounding of local governments.

  6. Fred Church Ortiz Fred Church Ortiz July 1, 2008

    “I don’t recall anyone ever laying down a states’ rights riff when discussing eminent domain.”

    Has the federal government ever really challenged the power of states to impose eminent domain?

  7. G.E. G.E. July 1, 2008

    pdsa – The notion of calling in the federal government to defend an individual’s rights against infringement by state or local government is the most unlibertarian thing I can imagine. Why not call in the U.N. or the E.U. while you’re at it?

    The 14th amendment was not ratified, and even if it were, it would have been the worst amendment ever — worse even than the 16th and 17th.

    I do not support the federal government preventing states from practicing socialism. I support the people rising up against tyrannical government at all levels.

  8. G.E. G.E. July 1, 2008

    The logic of pdsa is the same as the world governmentalist. Should the U.N. send troops into small towns to “defend” the rights of individuals adversely affected by local legislation?

    I support the right of individuals to do any and everything that does not involve the initiation of force.

    I do NOT support a federal government strong enough to be the God-like entity pdsa and the Statotarians want it to be.

  9. Sean Scallon Sean Scallon July 1, 2008

    So we have a”be like us or else ” libertarian? That’s original. Legalized meth in your town whether you like it or not because we said so from Washington.

    Without states rights there would be no medical marijuana and Steve Kubby would not have a case.

  10. RedPhillips RedPhillips July 1, 2008

    I am happy to agree with G.E. There is no logical limit to the universalists who reject decentralization. By what logic do you stop at the borders of the U.S. then? This argument inevitably leads to a justification for world government.

    Governments will always be restricting something. The question is who do you want doing the restricting? A far off massively empowered leviathan state or localities that are closer and more answerable to the people. This is the government of human scale.

    Those who argue that they don’t want any governments anywhere restricting anything are unserious Utopians.

  11. G.E. G.E. July 1, 2008

    I don’t want governments anywhere restricting anything but the initiation of force.

    However, I do not deny the right of individuals to establish their own governments that restrict whatever they want. If government is local, then dissenters can easily pick up and move away.

    The idea that an all-powerful Godvernment that can defend you against local tyranny is just so absurd, words can barely come to mind to describe its ridiculousness. Here we have the American Empire, quite possibly the most evil entity to ever exist on the face of the Earth, and you want it to defend you against your township trustees?

  12. RedPhillips RedPhillips July 1, 2008

    “The idea that an all-powerful Godvernment that can defend you against local tyranny is just so absurd, words can barely come to mind to describe its ridiculousness.”


  13. Trent Hill Trent Hill July 1, 2008

    Did Red and Ge just agree?…..TWICE?

  14. paulie cannoli paulie cannoli Post author | July 1, 2008

    It happens.

  15. G.E. G.E. July 1, 2008

    Red and I agree on a lot. We just disagree on some things very strongly.

    This case is somewhat unique because we agree for largely the same reasons. Normally, our reasoning is totally different.

    But of course, we are not in perfect harmony here, either. Red does not believe in the concept of “rights.” I do. I do believe in an absolute right to gun ownership and non-aggressive use. I just don’t trust a large government to “defend” my right against a smaller one. I don’t think I have the right to tell my neighbors what kind of laws they choose to live under.

    These “universalists” are really just left-liberal centralists. There is no more constitutional (originalist, at least) authority for the federal government to enforce the 2nd Amendment in Michigan than there is for it to do so in Beijing. Should we invade China if they pass anti-gun laws? Imposing restrictions on the states is no different than invading them, as it is the ultimate threat for disobedience, just as imprisonment is the threat behind non-payment of taxation.

  16. pdsa pdsa July 1, 2008

    @ Fred Church Ortiz-
    It is trivial to prove that there was never an original intent by the Constitution’s Founders to place all forms of private property ownership up onto the rarefied plane of Natural Rights. Only a small subset of all type3s of private property ownership are Natural Rights, and they are the property a human directly utilises in the day to day functioning of their lives. All other forms of ownership are derived from the state.

    It has been pretended by some, (and in England especially) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It’ would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself ; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine ; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

    Thomas Jefferson, “Letter to Issac Mcpherson”, August 13, 1813
    “The Writings of Thomas Jefferson”, Albert Ellery Bergh; Editor
    The Thomas Jefferson Memorial Association of the United States
    Washington, D. C.; 1907Volume XIII; pp 326-338at Google Books – slightly different version, but paginated the same.

  17. elfchaser elfchaser July 15, 2008

    I am a social democrat so perhaps I am not as

    qualified as many people hear to comment

    about States rights. It seems to me however,

    that if libertarian’s hinge is the sovereignity of

    individual liberty above all, than states’ rights is

    an essentially fundamentalist concept. And, like

    most fundamentalist tenets, it hews to the letter

    of its doctrine while ignoring its spirit. While it is

    true that decentralized federal power would

    reduce the overall cost and size of government,

    it would in effect quash personal freedom by

    allowing unlimited power to state

    AUTHORITIES to create irrational, liberticidal

    laws. This would leave the individual with little

    choice but to flee to another state, which by be a

    considerable distance away. If such people have

    humble means, this could be a grueling, health-

    taxing, emotionally/psychologically draining,

    and quite possibly deadly undertaking, as the

    European migrations to the U.S. and elsewhere

    throughout history bear out. As G.E.

    mentioned, states’ rights has been

    used in the past as a transparent excuse for

    racism (e.g, George Wallace’s Alabama). It has

    been used to pollute education (the Scopes

    trial), and assault religious and individual

    freedom (the recent Texican invasion of the

    FDLS in Texas, abortion laws prior to Roe


    Therefore, true libertarianism dictates (in my

    opinion) the State has do nothing save protect

    the citizen’s “inalienable rights” not only from

    individual and mob force, but from kangaroo

    government aggression as well.

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