“States’ Rights” Are Statist Rubbish
Posted by Thomas L. Knapp on Sep 26, 2009 in Commentary • 2 commentsMost 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.
Thomas L. Knapp is Senior News Analyst and Media Coordinator at the Center for a Stateless Society (c4ss.org).
Tom,
You make some good points. But a few comments.
“Most examinations of the doctrine of “states’ rights” are constitutional in scope.”
To some extent this is true. But for us explicitly anarchist, pro-decentralist libertarians, this is not completely the case. For us, clearly, states do not have rights; for us, the idea is simply a handy way to describe limitations on the power of the central, federal state. Saying a given federal action would infringe states’ rights is just another way of saying it exceeds the power granted to the federal government in the Constitution–that it is in effect ultra vires.
I do agree that constitutional arguments are largely a losing battle; for one, the Constitution is not libertarian.
You said that “states rights” is not mentioned in the 10th Amendment. True. But if you understand “states rights” to refer simply to the idea that the federal government is one of limited and enumerated powers (and it was meant to be: for more on this see the writing of <a href="http://www.stephankinsella.com/texts/#con-law"Tom McAffee), and the background fact that the states were standard governments of plenary legislative and police power (like most other states in the world, but unlike the sui generis federal government), then “states rights” is in the Constitution’s very structure. The Constitution grants only certain powers to the federal government; it was not meant to police and regulate issues such as, say, murder and contract enforcement and tort; the 13 states that created the federal government by compact, by treaty, of course retained their standard sovereign power of general legislation and police power. “States rights” then should be understood to simply mean that the federal government was created as a unique organization having limited powers, by thirteen sovereign states that retained most of their normal powers. (Another good reference on this is Kilpatrick’s The Sovereign States.)
So I would disagree that “there’s really no constitutional basis for the doctrine of “states’ rights.””
You also write, ““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.”
Sure, this is possible. The state continually tries to enhance its power over us, even when it pretends to be relinquishing it.
But the proper libertarian position is of course anarchy: that is, a society in which each sovereign is an individual. If the US were to break up into 50 separate states, this would, at least ceteris paribus, be a movement in this direction, since if you kept going, and then had each county, then city, and town, achieve independence and sovereignty, down to the individual…
Further, most anarcho-libertarian (not LP types, I’ll grant you) pro-decentralization arguments are of course not driven by any belief that states have rights, but out of a desire to shrink the state’s scope and power as much as possible, especially that of the American central state and in reaction to the pro-centralist libertarians: the incredibly naive arguments that we should rely on federal courts to “protect” our rights from the states, etc. Your fire should be directed at these centralists, not at anarcho-libertarians who oppose all states, including the American States, but especially the central state. (For more on this see Libertarian Centralists; Machan on Kelo; Healy on States’ Rights and Libertarian Centralists.) The libertarian centralists enhance state legitimacy by failing to recognize its essentially criminal nature.
“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.”
I agree; but this is of course very clear in the ideas of anarcho-libertarians.
Stephan,
Thanks for your comments!
I was not attempting to attack libertarian “decentralists” per se here. I can think of a lot of good arguments for decentralization.
As an anarchist, the only even facially meritorious argument I can think of for centralization is a sort of Hegelian argument to the effect that decentralization allows a large state to delay collapse under the weight of its own contradictions.
By piecing those contradictions out to its subdivisions where they can be resolved to the satisfaction of smaller local populations, instead of imposing “one size fits all” solutions, the overarching state reduces the utility of those contradictions as focal points for dissatisfaction that might undermine its perceived “legitimacy,” and also strengthens the perceived “legitimacy” of those subdivisions by letting them cater to the whims of local, rather than “national,” majorities.
That latter argument is the argument I’m using, but I’m not using it to argue for centralization. Rather, I’m using it to argue for concentrating on actual reduction or abolition, rather than decentralization, of state power (and of the state itself).