Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“In 1765, Parliament passed the Stamp Act, which, as any American high school student can tell you, was an act that apparently had something to do with stamps.”     Dave Barry

May 29, 2010

There Is No Such Thing As “State’s Rights”

by Doug Mataconis

slide4

Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere that:

All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.

Indeed.

TrackBack URI: http://www.thelibertypapers.org/2010/05/29/there-is-no-such-thing-as-states-rights/trackback/
Read more posts from
• • •

9 Comments

  1. It’s hard to believe, but in fact not everything on the planet is about racism.

    Comment by Procopius — May 29, 2010 @ 9:35 am
  2. “States don’t have rights. Individuals do.”

    Green stole that line from me. Or did I steal it from Ayn Rand? Can’t remember… ;-)

    Comment by KipEsquire — May 29, 2010 @ 2:25 pm
  3. I’m guessing that you don’t think too highly of California’s marijuana-legalization measure on the November ballot then?

    Comment by Justin Bowen — May 29, 2010 @ 5:17 pm
  4. Why would you say that Justin ?

    Comment by Doug Mataconis — May 29, 2010 @ 5:20 pm
  5. More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

    The California ballot measure is intended to create a state law to overrule federal law. It’s pretty much a libertarian’s dream ballot measure – except that it would have to rely almost entirely on the 10th Amendment in court for its survival when the state (or someone operating under the state law) is sued by the federal government. What other possible defenses would a person have against a federal lawsuit if they operated legally under the state law while in violation of federal law?

    I agree that it’s absurd to talk about states’ rights because rights apply only to individuals. That aside, if states’ rights under the aegis of the 10th Amendment is an absurd notion viz-a-viz the power relationship between states and the federal government in light of the Civil War (or whatever you want to call it) and the 14th Amendment, then California’s marijuana-legalization ballot measure is an equally-absurd notion. The ballot measure is little more than an attempt at nullification of a federal law (in fact, that’s about exactly what it is). Because might makes right and because the current interpretation of the Commerce Clause and the 14th Amendment gives the federal government almost limitless power (two realities that, as you points out, can’t be ignored), the California ballot measure, if successful, should be viewed with trepidation by libertarians.

    Am I missing something here?

    Comment by Justin Bowen — May 29, 2010 @ 5:46 pm
  6. Justin,

    But you assume that I agree that the Federal drug laws are legitimate. I do not. There is NOTHING in the Constitution that authorizes Congress to ban drugs.

    Comment by Doug Mataconis — May 29, 2010 @ 5:48 pm
  7. With all due respect, it doesn’t really matter whether you think it’s legitimate or not. Legitimacy is determined by who has more guns and who has more of a desire to use them. We can all do the song and dance thing about whether rights come from governments or are naturally-occurring (or worse, God-given) and individual in nature, but in the end the whole debate will be about as fruitful as a debate over the existence of His Noodliness. Once you start going down the path of legitimacy based upon interpretation then all you’ve done is give every other group the legitimate right to get enough people to act in a similar manner based upon the same principle (which is all that’s happening in the case of the marijuana ballot; one group of people long ago interpreted the Constitution one way for their purposes and now they’re (and you’re) trying to interpret it another way for your purposes (by the way, where in the Constitution does it say that Congress can abridge the right to bear firearms in certain cases?)). You of all people certainly don’t need to be told that the meaning of statutory law is all in the eye of the beholder; man made it, therefore man can make it into whatever he wants.

    Comment by Justin Bowen — May 29, 2010 @ 6:01 pm
  8. governments have powers not rights.

    Comment by mo — May 31, 2010 @ 5:08 pm
  9. Point taken, Doug, but I think the gist of the so-called “states’ rights movement” is to restore some semblance of subsidiarity in our republic.

    Comment by Eric Williams — June 3, 2010 @ 11:24 am

Comments RSS

Subscribe without commenting

Sorry, the comment form is closed at this time.

Powered by: WordPress • Template by: Eric • Banner #1, #3, #4 by Stephen Macklin • Banner #2 by Mark RaynerXML