Libertarians and States Rights

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It
is well known that left libertarians often look towards the benevolent
and freedom-loving federal government to destroy the "grassroots
tyranny" of state and local governments. Usually they have
the decency to admit that they support centralization. Cato Institute
fellow, Alan Reynolds, takes a novel approach
to the issue in the Washington Times claiming that he supports
decentralization and federalism, but opposes the concept of States
Rights. He starts off by telling us that some black columnist recently
came up with the unique conclusion that during the 50s and 60s "the
words ‘states’ rights’ and ‘illegal encroachment by the federal
government’ [were] used in place of ‘segregation’ and ‘integration’”
by some segregationists. This may be true, but the concept of States
Rights goes back much further than the civil rights movement. States
Rights was explicitly supported by many of our nation's most articulate
defenders of liberty such as John Taylor of Caroline, George Mason,
Thomas Jefferson, and John C. Calhoun. Even classical liberals from
across the pond recognized the importance of States Rights. After
the Civil War, Lord Acton wrote to Robert E. Lee, "I saw in
State Rights the only availing check upon the absolutism of the
sovereign will."

Conservatives
and libertarians supported States Rights for many reasons other
than a defense of Jim Crow. They used it to argue against the New
Deal, the federal highway system, farm subsidies, housing projects,
and a host of other government programs. They even used it as a
means to fight Communism. Clarence Manion noted that Joe McCarthy's
crusade against Communists was focused on those who were in the
State Department, Defense Department, and agencies like Voice of
America. This was no accident. Manion realized that foreign policy
was the one area that Washington had total sovereignty over. He
noted that if communist spies tried to take over the department
of interior, they could not collectivize land because of our 48
different state governments. This led him to proclaim that "States
Rights is your number one defense against Communism."

Mr.
Reynolds has very little use for Old Right heroes like Manion, and
instead tells us that in the early 60s he was "passionately
in favor of the Rev. Martin Luther King’s dream of treating people
as individuals, not as members of arbitrary categories." At
the same time he claims that "I was and still am a big fan
of decentralized government, otherwise known as federalism or devolution."
Reynolds seems to admit that those two ideas were somewhat in conflict.
This is because the civil rights movement led to increased centralization
of power in America.

How
does he reconcile these two positions? He simply recycles the left
libertarian line that "States have no rights; only individuals
have rights." Reynolds is creating a straw man. No one suggests
that states possess any sort of natural or civil rights. The point
is that the Constitution, properly interpreted, gives states primary
jurisdiction over the federal government's in most areas, and that
they possess many legal rights, such as secession and nullification.
Secondly, a decentralized government is much more accountable to
the people and less prone towards tyranny. Libertarians support
States Rights because they restrict the power of the federal government,
not because they wish to empower state governments.

These
concepts were understood not only by the founders of our country,
but by many great libertarian and conservative thinkers such as
Ludwig von Mises, James Kilpatrick, Frank Chodorov, and Murray Rothbard.


Reynolds does not seem to be completely at odds with this position.
He tells us

The
Constitution enumerated a deliberately narrow list of what the
federal government could legitimately do, essentially just a
common market with a common currency and army. The 10th Amendment
added that “powers not delegated to the United States Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”

So
far, so good. He goes on to cite many reasons to support a decentralized
government (though they all relate to increasing government efficiency,
rather than limiting the power and size of government.) Noting that
competition among states will encourage businesses to locate in
localities with more economic freedom, Reynolds writes, "States
that charge steep taxes for mediocre services invariably repel talented
citizens and promising businesses. State politicians can easily
be held accountable for results that fail to measure up to other
states." He tells us that federalism promotes political harmony
among regions with different social and cultural norms, citing how
Las Vegas and Salt Lake City have different laws in regards to gambling
and prostitution that reflect their political differences.

Reynolds
goes on to give many illuminating examples of federal encroachment
into state areas such as Roe v. Wade, medical marijuana, the 21-year-old
drinking age, the 55 mph speed limit, RICO laws, standardized school
curricula, and the Homeland Security department. This is all well
and good, but it fails to explain why public accommodation laws
or local school segregation are federal matters. While I don't support
any of the recent anti-terrorism laws, they seem to be more in the
constitutional domain of the federal government than the racial
make up of public schools.

What
makes issues that involve race somehow different than everything
else? Every single reason given to support federalism would promote
the view that the federal government should have absolutely no control
over state schools. The difference, according to Reynolds is that

As
Cato Institute scholar Roger Pilon points out, the states, too,
derive “their just powers from the consent of the governed.”
States never had any right to provide unequal treatment under
the law, regardless whether that meant favoritism (affirmative
action) or the opposite (segregation).

Assuming
that we accept the Declaration of Independence as a legally binding
document, this argument does not empower the federal government
to do anything. How cans a decision by judge or bureaucrat in Washington
that nullifies a law legislated in a state or locality mean "consent
of the governed?" Barry Goldwater noted in The
Conscience of a Conservative
that while state governments
may have duties that go along with their rights, those duties "are
owed to the people of the States, not to the federal government.
Therefore, the recourse lies not with the federal government, which
is not sovereign, but with the people who are, and who have full
power to take disciplinary action."

Reynolds
would probably argue that because of the 14th Amendment,
the federal government had an obligation to ensure that segregation
was not allowed. This argument is absurd because the same Congress
that passed the 14th Amendment (itself dubiously ratified),
also segregated schools and other public facilities in the District
of Columbia. This does not mean that segregation was good, but that
the 14th could not have been aimed at it.

In
the wake of the Trent Lott episode, the political establishment
will try even harder to destroy whatever remnants of States Rights
remain in this country. It is important for libertarians to defend
this important principle. This will not be if most libertarians
see more wisdom in Abraham Lincoln and Martin Luther King than Jefferson
and Calhoun.

January
9, 2003

Marcus
Epstein [send him mail] is
an undergraduate at the College of William and Mary in Williamsburg,
VA, where he is president of the college libertarians and editor
of the conservative newspaper, The Remnant. A
selection of his articles can be seen here
.


     

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