In a recent discussion, a libertarian in favor of an expansive reading of the 14th Amendment and the power of the federal government to “supervise” the states asked, “In a federal system, the federal government has restrictions placed on its powers, but it also has powers to protect rights. Otherwise, what justifiction could there be for it at all?”
In other words, the writer argues that if the federal Constitution lists a right, this is not only a limitation on what the federal government can do, but also a grant of power to the federal government to prevent other states from violating the listed rights… including not only constituent States like Texas but other states like Mexico or Canada or Ghana. So get this: the recognition of rights in the document authorizing and limiting the federal government, meant to serve as a backup way of ensuring that the federal government does not claim to have the power to infringe these rights… has been morphed–by libertarians, no less!–into a grant of power to the feds!
I am reminded in this regard of a great letter by Jefferson to Joseph C. Cabell, which makes a strong case for decentralization of power and federalism (maybe even a subtle argument for anarchy, much as has been said of Mises being a near-anarchist — e..g., the comments by Rothbard, and McGee). (Thanks to Michael Smith for link to Jefferson letter.)The letter reads:
2:43 am on February 5, 2005 Email Stephan Kinsella
Thomas Jefferson to Joseph C. Cabell
2 Feb. 1816Writings 14:421–23
No, my friend, the way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian senate. And I do believe that if the Almighty has not decreed that man shall never be free, (and it is a blasphemy to believe it,) that the secret will be found to be in the making himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetical process, to higher and higher orders of functionaries, so as to trust fewer and fewer powers in proportion as the trustees become more and more oligarchical. The elementary republics of the wards, the county republics, the State republics, and the republic of the Union, would form a gradation of authorities, standing each on the basis of law, holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the State who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte. How powerfully did we feel the energy of this organization in the case of embargo? I felt the foundations of the government shaken under my feet by the New England townships. There was not an individual in their States whose body was not thrown with all its momentum into action; and although the whole of the other States were known to be in favor of the measure, yet the organization of this little selfish minority enabled it to overrule the Union. What would the unwieldy counties of the Middle, the South, and the West do? Call a county meeting, and the drunken loungers at and about the courthouses would have collected, the distances being too great for the good people and the industrious generally to attend. The character of those who really met would have been the measure of the weight they would have had in the scale of public opinion. As Cato, then, concluded every speech with the words, “Carthago delenda est,” so do I every opinion, with the injunction, “divide the counties into wards.” Begin them only for a single purpose; they will soon show for what others they are the best instruments. God bless you, and all our rulers, and give them the wisdom, as I am sure they have the will, to fortify us against the degeneracy of our government, and the concentration of all its powers in the hands of the one, the few, the well-born or the many.
The Founders’ Constitution
Volume 1, Chapter 4, Document 34
The University of Chicago Press
The Writings of Thomas Jefferson. Edited by Andrew A. Lipscomb and Albert Ellery Bergh. 20 vols. Washington: Thomas Jefferson Memorial Association, 1905.