“States’ Rights” Are Statist Rubbish

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.

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