CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, 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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

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  • John222

    Marijuana prohibition seems a rather petty issue for the States to assert their “rights” over. It would probably help their efforts greatly if they were to seek representation in the Federal Government. As both the Legislative and Executive branches are now popularly elected the States themselves, as entities, have no official representation.

  • Procopius

    Marijuana, on the surface, might seem like a petty issue between state and federal govts. It doesn’t take much examination at all, however, to understand that the amount of federal monies, as well as the employment infrastructure (FBI agents,DEA agents, ATF agents, all municipal/county/state police forces, all municipal/county/state judicial personnel) then you see that the issue is actually deadly serious.
    If someone were to examine how far a state can go to exercise its prerogative with compliance with a federal drug law, maybe it would be necessary to research the legality of a state to choose not to enforce the federal drug laws. If the answer is simply a matter of withdrawn monies from the compliance (and loss of DEA etc in that state), then that would indicate that a withdrawal by a state from the drug laws is viable.

  • John222

    Brad, after further consideration (and discussion with my wife) I believe your two assumptions may be mutually exclusive in the case of the United States. If natural rights include the right to freely associate, then our constitutional democratic republic may not really be legitimate.

    If our form of government is in fact legitimate, then we may not actually have the right to associate (or not) with whom we choose.

    I believe freedom of association to be a natural right, as well as life, liberty and property.

    Procopius, the answer to marijuana prohibition is for the President to order the head of the FDA to reclassify marijuana according to current knowledge and medical uses. It is ridiculous that they can continue to insist that marijuana is a Schedule 1 narcotic with no known medicinal value despite ample evidence to the contrary, toxicity being the most obvious.

  • Brad Warbiany


    Regarding your first comment, that’s an excellent point about the original State representation in the Senate. From Federalist 62:

    In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

    Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.

    I would point out that the sovereignty is illegitimate if it is a government that does not meet the legitimacy test (being formed by the consent of the governed and not assuming powers that its individual inhabitants do not possess — i.e. the power to violate natural rights of those inhabitants).

    As for your second comment, I will not debate that in this venue for the very reasons I stated above in the post. I am not disagreeing with you, only stating that to point out that the premises are logically inconsistent is one of the foundations of my philosophical anarchism, but that they are premises widely accepted within the US. Since my post is not in defense of anarchism, it is not the proper place to have that debate.

  • procopius

    At that point, I would have to consider the legitimacy of the FDA itself, if in fact the entire federal issue’s primacy lies in the FDA. They still have trouble “letting” citizens drink raw milk for God’s sake. And don’t start with commerce law, this is beyond ridiculous.

  • procopius

    Brad the only essential point that I’m gathering from your special philosophy is your agonizing over the legitimacy of the concept of property. Did I miss something?

  • Michael O. Powell

    I did tell you that my view was nuanced. While state’s rights have been hijacked by racists and feudalists during the twentieth century, it bears quite a bit of relevance in the battle against the war on the drugs. That’s why I view it as a dangerous use of terminology that flirts with a group of people that probably shouldn’t be in mainstream politics. When it comes to pure intellectual righteousness, however, the states that step up to federal authority in the war on drugs are strong. They are just better off in recruiting support by citing “individual rights” rather than “state’s rights.”

    I hope that makes sense and didn’t seem like too much of a ramble.

  • John222

    My apologies Brad, for failure to follow directions.

    As far as State representation, I hold little hope that it can be regained through a popular vote.

    The argument that the States violated the rights of their inhabitants (meaning slaves) seems weak when you consider that at the time, they had no rights. Freeing the slaves was little more than a war tactic, albeit an effective one.

    In Wo v. Hopkins, Justice Matthews points out:

    Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.

    From that perspective, a delegate, ambassador or other representative holds no actual rights of their own, but rather a responsibility to act in the best interests of those he represents.

  • Michael Powell

    “Marijuana prohibition seems a rather petty issue for the States to assert their “rights” over.”

    Marijuana prohibition is hardly a “petty” issue. A petty issue would be whether a new bridge should be built in South Park, Washington. The War on Drugs has given the federal government unprecedented authority to interfere with lethal force in the lives of Americans. Our unwavering demand in a prohibited substance has also strengthened drug cartels in Mexico to the point that they are powerful enough to take power away from the Mexican government.

  • John222

    The way several states have approached marijuana prohibition does nothing to address the larger issue of the war on drugs in general, they simply want marijuana removed from the list.

    This may be seen as a start, but I see it as more of a false start. Once marijuana is approved for medicinal purposes, where will the impetus to remove the rest come from?

    The drug cartels make a relatively small profit from the marijuana they traffic in, it’s the cocaine and heroin that bring the big bucks.

  • Brad Warbiany

    The drug cartels make a relatively small profit from the marijuana they traffic in, it’s the cocaine and heroin that bring the big bucks.

    Stay tuned on this one, John, I’m working on a long post about California’s ballot measure to directly legalize marijuana, and one of my points is that I actually think it will reduce overall drug use (by severing a link between casual pot use and the world of underground drug trafficking).

  • Brad Warbiany

    The argument that the States violated the rights of their inhabitants (meaning slaves) seems weak when you consider that at the time, they had no rights.

    There’s a reason I used the term inhabitants so many times, rather than citizens. These slaves had natural inherent inalienable rights, by virtue of being human beings. They did not have legal rights, of course, but that fact is a condemnation of the governments of the States, not a rejection of the argument.

    I am explicitly stating that the States were legally violating the natural human rights of their inhabitants, and thus no longer a legitimate government. A government instituted to protect rights loses its shine if it systematically and legally violates those rights.

    From that perspective, a delegate, ambassador or other representative holds no actual rights of their own, but rather a responsibility to act in the best interests of those he represents.

    Correct, inasmuch as you define these rights as natural rights. However, those people are empowered by their inhabitants to form an institution (State government) to act on their behalf. That institution, when it enters into relationships with other entities (be it a national superior government or peer governments) has legal, contractual rights.

    On Twitter, my co-contributor Doug responded that he thought it was dangerous to use the language of “rights” with regards to non-individuals. I don’t disagree. There is a danger there, because we can easily conflate inherent natural rights with artificial legal rights. However, that does not mean that those legal rights do not exist.

  • procopius

    Corporate entities were given essentially human rights by the SCOTUS around like 100 years ago?

  • John222

    I look forward to your post on California’s ballot measure. I think you are right, in the long term overall drug use will probably go down. There may a short term surge in marijuana use though.

    I am wary of assigning rights to non-individuals. When I consider contractual relationships, I think more in terms of contractual obligations or responsibilities. I understand why such things as limited liability corporations exist and how they are treated by the courts, but with rights also come responsibilities. It doesn’t seem right that a fictional entity can enjoy virtually all the benefits of being a natural person without in turn taking on all of the liabilities.

    Here in Florida, a constitutional amendment designed to protect the rights of pigs passed with a majority popular vote. The unintended consequences were that all the pigs were slaughtered almost immediately and pigs are no longer raised for food in Florida.

  • Brad Warbiany


    I think the way I define it would be simple:

    1) Individuals entrust their government with certain powers that are better provisioned collectively.
    2) Those governments engage in relationships with other governments (in this case States forming a Constitutional federal government), and entrust certain powers upon the larger collective (i.e. interstate commerce arbitrage, nat’l defense, etc).
    3) The set of legal rights we call States’ Rights are the intersection of legitimate powers given to the States by their inhabitants that are not given by the States to the Federal government.

    Think of it, perhaps, like attorney-client privilege. I as a client entrust my lawyer with confidential information. My lawyer then has a legal right to withhold that information from the government, because he is acting as my agent. I.e. I have entrusted that information to my attorney under the agreement that it remain confidential, and thus he inherits my right to privacy as my agent.

    As for the pigs, I think that the system actually worked entirely as intended. The idea that pigs have rights is absurd, of course, but if your state chooses to recognize the legal rights of pigs, I would entirely expect that government be empowered to protect those rights, and consequently the behavior in question — raising pigs inhumanely (note the term “inhumane” is entirely incorrect as non-humans have no expectation of “humane” treatment) — ended in Florida. Yes, it had the consequence of simply moving those operations offshore, but Florida cannot regulate other jurisdictions.

  • John222

    I guess it is the language I have a problem with. Where you would use the word “right”, I would use “responsibility” or “obligation”.

    The system did work exactly as intended in Florida. I still think that many would not have voted in favor of that amendment if they had known what would then happen to the pigs. Also, what was regarded by some as inhumane treatment, was in fact the pig farmer trying to protect pregnant sows.

  • Michael O. Powell

    “The drug cartels make a relatively small profit from the marijuana they traffic in, it’s the cocaine and heroin that bring the big bucks.”

    That’s a really good point, John, and a pretty decent argument for why the whole run of illicit narcotics should be legitimized.

  • Michael O. Powell

    BTW I’m really looking forward to reading Brad’s piece on the CA marijuana ballot measure. Some of the crimes have spilled over into the San Diego area, so it is definitely a serious issue for us and not simply an issue of letting stoners get their drugs legally.

  • VRB

    Couldn’t you just said, ” Yes, Michael, States…”

  • Michael O. Powell


  • Brad Warbiany
  • VRB

    I know the reference.

    It is, that when I hear or read it, I stop for an instance.

  • Akston

    So Brad, you’re saying that only Virginia has rights? What about West Virginia?

  • Michael O. Powell

    No, if he is telling Virginia, then Virginia must have not wanted state’s rights. We’ll assume that Virginia is attempting to violate another state’s rights. =/

  • Akston

    Michael, are you endorsing Virginian sacrifices?

  • Michael O. Powell

    No, I’m an agnostic. Those rituals aren’t my thing. Hahaha.