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.”