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On “States’ Rights”

My reply to Tom Knapp’s “‘States’ Rights’ Are Rubbish”:

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 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 [see The Unique American 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.

***

In other words, “states’ rights” is just shorthand for a concept we can presumably all identify without degenerating into nonsense about states having no rights.

As Tom DiLorenzo told me, “no one ever said a state had “rights.” Jefferson certainly wasn’t that dumb. It always referred to the rights of individual citizens protected by banding together within their respective states to oppose federal oppression. Jefferson’s Kentucky Resolve nullifying the Sedition Act is the first and best example of what is meant by “states’ rights.” Blowhards who scream “states don’t have rights, people do” are ignorant of this and are blowing smoke up their own asses. Clyde Wilson is THE authority on this. Browse his archives if you want to dig further. Don Livingston is just as big an expert.”

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{ 3 comments… add one }

  • Clay Barham September 26, 2009, 6:24 pm

    In the 19th century, our greatest politicians, the Democrats from Jefferson to Cleveland were believers in State’s Rights as the proper course for keeping government close to the people and out of their pockets and endeavors. Had we stuck with them, the states having slavery would have changed and the tariffs that gave an edge to one state over another would never have existed. See THE CHANGING FACE OF DEMOCRATS now with Amazon.com or read the site http://www.claysamerica.com.

  • t w v September 28, 2009, 12:27 pm

    On Knappster I defended the term “states’ rights” as follows:

    A right is an ostensibly legitimate claim to obligatory treatment.

    The powers enumerated in the Constitution, and unenumerated but respected in the Tenth Amendment, are assumed by common sense of the document to be just powers. That is, if you have the power to do X, others are obliged not to stop you, or war with you to prevent your act.

    That makes a power pretty much a right.

    There was a reason the term “states’ rights” evolved. It conformed to the common sense of the language used.

    Fine distinctions between rights and “just powers” are not likely to be made in the rough of politics.

    This being said, I also wrote that “I still prefer to use the term ‘unspecified reserved powers’ for the name of the doctrine advanced by the Tenth Amendment.” But then, I, too, am a pedant.

  • Stephan Kinsella September 28, 2009, 12:47 pm

    Wirkman, I tend to agree with you–by granting only specified, limited, enumerated power to the feds, and with the emphasis of the tenth amendment (and the ninth), what this means is that any remaining powers of sovereignty normally exercised by states are reserved to the States, or to the people–this later “or” b/c the federal constitution does not need to decide this: it’s up to State constitutions; the main point is that the power is not delegated to the feds.

    This does imply that the powers the States have reserved are like “rights” of things the States can do. I think the word “right” is correlative to power. To say States rights means the feds lack the power to regulate in a given area. But saying the state lacks power to legislate or act, is yet another way of protecting not only the “rights” of states, but also individual rights; in fact the enumerated powers scheme — or the “residuum of unspecified reserved powers,” if you will ;) — of the federal constitution is the chief means of protecting individual rights from violation by that government. So saying “States rights” is clearly a way of referring to individual rights.

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