Tom Knapp: “States’ Rights” Are Statist Rubbish

Posted by Thomas Knapp at Center for a Stateless Society:

Most examinations of the doctrine of “states’ rights” are constitutional in scope. That is, they consider the meaning, import and impact of the term in light of the 10th Amendment. In order to get to where I’m going with this look at “states’ rights,” we’re going to have to walk over some explanatory constitutional ground, but let me warn you in advance to put on your best hiking boots … we’re going to venture all the way out the other side of that ground and into some very different territory before we’re done.

The two obvious starting points on our journey are where the doctrine comes from and what it’s been used for. Here’s the 10th Amendment, from which the doctrine is derived:

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.

An important thing to notice: “States’ rights” isn’t mentioned by name in the amendment; as a matter of fact, “rights” aren’t mentioned at all. Rights are, however, mentioned in the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

An equally important thing to notice: “States” aren’t mentioned in the amendment that talks about “rights.”

The framers of the Constitution were onto something there, I think — they recognized at least two key distinctions between “rights” and “powers.” The first distinction was that “rights” were considered natural possessions of “the people,” who “retained” them; while “powers” were considered conditional delegations to one level of government or another.

The doctrine of “states’ rights” turned these distinctions on their heads. That last little clause of the 10th Amendment (”or to the people”) was memory-holed by its propounders, who asserted that in the absence of a federal “power” to do X, that “power” not only automatically devolved to another level of government but somehow, in the process, magically transformed itself into a “right” — a natural possession, rather than a delegation — retained by the state, rather than by the people.

To put a finer point on it, there’s really no constitutional basis for the doctrine of “states’ rights.” And the corruption of constitutional language and meaning required for that doctrine to take root was an indicator of what it was mainly to be used for: The maintenance of slavery prior to the Civil War, and the maintenance of segregation and racial discrimination as state policy after.

Some libertarians — and some politicians affiliated with Libertarian Party — have recently dedicated themselves to exhuming and reanimating the pernicious doctrine of “states’ rights.” As a matter of fact, last year, Libertarian Party presidential candidate Bob Barr announced on national television that “states’ rights is the essence of libertarianism.”

While the constitutional argument for “states’ rights” is exceedingly weak, the libertarian arguments for it are even weaker. Its advocates claim that because it promotes “decentralization,” it enhances freedom — but that’s wrong on at least two counts.

First, “states rights” offers at least as much utility for suppressing freedom as for enhancing it, and historically its successful use has always been anti-freedom in effect.

Secondly, “decentralization” doesn’t weaken the state — quite the opposite, in fact. It strengthens the state by allowing the state’s subdivisions to more specifically tailor their policies in ways that maximize their overall power. By bowing to vox populi on the micro-scale, the state enhances its facial “legitimacy.” California, for example, has legalized medical marijuana (in other words, recognized the right of Californians to use it) while illegalizing same-sex marriages (in other words, suppressing the rights of a minority). In doing so, it has gained “legitimacy cred” with both its marijuana-tolerant constituency and its bigoted constituency. In any other state, either of those issues could come out either way … but with the same effect of reinforcing the state’s grip on its subjects’ lives.

The first step toward building a truly libertarian movement — be it political or anti-political, “minarchist” or anarchist — is promoting recognition of the fact that states don’t have rights; people do.

The second step (and one which leads inevitably, in my opinion, to advocacy of the stateless society) is that delegations of power to states (any states, at any level of governmental hierarchy) are inevitably — even in the face of clear prohibition, as in the US Constitution — transformed into fake “states’ rights” which can only be exercised at the expense of real people’s rights.

23 thoughts on “Tom Knapp: “States’ Rights” Are Statist Rubbish

  1. Brian Holtz

    There are very good reasons for preferring that civil liberties in early 21st-century America should be protected at the level of the federal judiciary, rather than at the level of state governments — or at the level of the U.N. However, those reasons are empirical matters of historical contingency, and have no more necessary connection to abstract libertarian principles than does the historical scarcity of gold. Seventy years ago, when the federal government was just as bad as the various states on civil liberties, and was leading the assault on our economic liberties, it would indeed have been preferable to limit federal jurisdiction as much as possible in precisely the way that 72-year-old Ron Paul suggests. The last 70 years of improvements in America’s civil liberties weren’t due to any magic wand of the federal judiciary — rather, the courts were just spurring (and sometimes chasing) social changes that were happening anyway. However, the federal nanny state has slashed our economic liberty in ways that the several states could never have replicated even by acting in parallel. States that tried to create mini Medicare or Social Security schemes would have failed miserably, because people could leave (and because states can’t print money).

    I for one don’t want the federal government to do for other civil rights what it’s done for substance use and campaign speech and equal marriage and warrantless monitoring and gun rights and ‘hate crimes’ and reproductive technology and digital copying technology. Still, if in 2009 a magic button could put the federal judiciary in charge of all of America’s personal liberties, while eliminating all federal jurisdiction over our economic liberties, I’d gladly push it. Unfortunately, I don’t yet see a way to get the feds to protect our civil liberties without also trampling out economic liberties. At this point, I’d be willing to radically reduce the federal involvement in both areas, and let the states compete in things like marriage laws and socialized healthcare. Let the free-est jurisdiction win.

  2. George Phillies

    Superbly well said, Tom.

    In America “states rights” is about beating on persons of color for having the temerity to ask permission to have the right to vote.

    In contrast, I note from the last LNC meeting that we have signed as a speaker Jefferson Davis, a descendant of the 1861 Jeff Davis of the CSA, who is more usually associated with the Southern Party.

  3. Brian Holtz

    What libertarians should be smuggling in any idea labeled “State’s Rights” is a coin with two sides: decentralism and exit. Arnold Kling has a recent post up at http://econlog.econlib.org/archives/2009/08/what_is_real_fr.html arguing that real freedom depends on having the choice of exit, rather than having a democratic voice.

    Libertarians should always push for decentralization of government authority, even if we think that other people (e.g. “dixiecrats”) are using this means for a different end. If we really believe that freedom works, then we shouldn’t fear competition between jurisdictions that can vary how much freedom they allow. If our liberties in our local jurisdiction can only be protected by the standards of a distant central government, then our cause is already lost. A distant central government will always be captured by rent-seeking, thanks to the diffusion of its monitoring and the concentration of its benefits.

  4. George W Bush and Dick Cheney are the real 9/11 terrorists and Obama Been Lyin'

    Are you sure that it’s that Jeff Davis?

  5. George W Bush and Dick Cheney are the real 9/11 terrorists and Obama Been Lyin’

    That was in response to Phillies, Holtz posted in the meantime.

  6. Michael H. Wilson

    Well done Tom. How about sending this in to the LPHQ and see if they will run it in the national news letter??

    MW

  7. Danny S

    A state doesn’t have any right beyond what it has been ennumerated in the Constitution.

    That being said, the proper idea should be that neither states nor the federal government should be defined as supreme over the other.

    When you say the one has power over the other in all cases it just gives the dominant one a carte blanche.

    If you force them to compete and treat it more like checks and balances instead of the federal court system then there is a better chance of competition to have better or more moral policy.

  8. R. Swanson

    I believe the US LP view was to bring governance past the state to the local and voluntary association level, police levels as the terminology goes.

    There are over 15,000 competing government jurisdictions in the US, which would go a long way on choice. Increasing awareness of this factor is a main part of mini-archism.

    Brian H. makes a good point. Many scholars say the Federal judiciary grew as an alternative in part because state courts were very corrupt by 1880. Also, in the US the Supreme Court effectively acts as a court of cassation or rights determination. These are separate courts in Europe. In Latin America a trend has begun for direct suits to enforce rights.

  9. mdh

    States have no rights at all. The constitution is illegitimate. Only sovereign human beings have rights, and those rights cannot be granted or taken by any government. All governments are illegitimate.

  10. Melty

    Yes, “states’ rights” sounds bad and doesn’t make proper sense.
    What’d be a good sloganeering? “state sovreignty” / “voluntary union” / “downsize DC / “take the tenth” ??

  11. Melty

    thanx mdh!
    as you can see I’m a rather moderate minarchist
    legalization of drugs and prostitution is about as far as I go

  12. paulie Post author

    Tom writes

    Secondly, “decentralization” doesn’t weaken the state — quite the opposite, in fact. It strengthens the state by allowing the state’s subdivisions to more specifically tailor their policies in ways that maximize their overall power.

    This is where I would disagree. Do you think giving the UN taxing, regulating and military policing authority over us would make us better off?

    Larger governments make it harder for people to vote with their feet, add layers of bureaucracy and remove accountability.

    It would seem logical to me that to devolve power to the individual level, it makes sense to first devolve some of it to the local level, rather than concentrating it at – say – the world government level.

    At least that way, it would be somewhat easier for me to decide which government oppressions are the worst and move accordingly.

  13. paulie Post author

    I would agree that states rights is a poor formulation, but I’m a fan of decentralization – it’s even a green value, so there’s no need to tie it in with slavery and segregation.

  14. JT

    Paulie: “I would agree that states rights is a poor formulation, but I’m a fan of decentralization – it’s even a green value, so there’s no need to tie it in with slavery and segregation.”

    Actually, it’s a green value as long as it doesn’t apply to economic laws. Greens don’t support decentralization of government authority when it comes to business mandates or taxes for favored social programs. In those cases, they think nationalization is perfectly fine.

  15. Thomas L. Knapp

    Paulie,

    You seem to be assuming that the only alternative to “decentralization” is further “centralization.”

    I don’t have anything against decentralization per se. I just don’t think that the argument that decentralization necessarily reduces state power holds water. In some cases, it does the opposite.

    In a military context, decentralizing command all the way down to the fire team level increases the overall power of the military force, since the fire team leader on the ground has a better grasp of the situation within a few hundred meters of himself, while the commanding general may be a hundred miles away looking at “the big picture.”

    With respect to the individual, that fire team leader in the decentralized chain of command is also a lot more likely than the guys back at battalion HQ to catch and summarily execute the individual who has decided he doesn’t want to study war no more and is going to put down his rifle and walk away.

    Increasing the efficiency with which the state does the things it does is not the same thing as reducing the power of the state to do whatever it’s doing.

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