This letter, from libertarian legal scholar Healy, responding to attacks on his position, was published in the February 2000 edition of Ideas on Liberty.
Clint Bolick begins by trotting out the states-don't-have-rights-states-have-powers straw man from his 1993 book Grassroots Tyranny. (John McClaughry apparently also found the phrase irresistible and irrefutable.) But here Bolick confuses natural rights, and legal rights. No oneu2014no libertarian, at leastu2014who speaks of a violation of "states' rights," thereby seeks to ascribe natural rights to an artificial, noncognizant entity like a state. When a libertarian decentralist calls a federal action a violation of "states' rights," he means that the federal government has transgressed its enumerated powers and is claiming jurisdiction over an area that the Constitution reserves to the states. In a similar fashion, we can speak of Nato's lawless assertion of jurisdiction over a civil war in Yugoslavia as a violation of Yugoslav "sovereignty," without thereby conceding to Slobodan Milosevic's government a god-given natural right to kill Kosovar Albanians. I'm curious, would Bolick and McClaughry respond to critics of Nato's cluster-bomb humanitarianism with "states aren't sovereign, only individuals are sovereign"?
Bolick suggests that the idea of states' rights has always been anathema to libertarians. Not so. Libertarian decentralists can draw on a host of classical-liberal thinkers who embraced divided sovereignty and viewed centralization in the name of liberty with intense skepticism. Among them: Thomas Jefferson, Lord Acton, Albert Jay Nock, and Felix Morley. In fact, Bolick must know that "states' rights libertarianism" is not oxymoronic, because he is familiar with Felix Morley's work. In Grassroots Tyranny, Bolick repeatedly cites Morely's classic Freedom and Federalism despite Morley's embrace of states' rights and wholesale rejection of Fourteenth Amendment activism. (Morley, who viewed Thad Stevens as an American Robespierre, would also have taken issue with Bolick's belief that the pro-tax, high-tariff, corporate statists in the Radical Republican junta constituted the "most libertarian Congress in history.")
As for John Calhoun, Murray Rothbardu2014who after all knew a thing or two about libertarianismu2014would have been bemused by Bolick's notion that Calhoun was far too politically incorrect to be of service to libertarians. Rothbard called Calhoun "one of America's most brilliant political theorists," and quoted him at length in For A New Liberty.
If Bolick wants his position on libertarianism and federalism to remain the party line, then when that position is challenged, he ought to respond with something more than a few sound bites and a dismissive tone. He ought to make an argument or two.
To his credit, Roger Pilon has made an extended argument on behalf of a strong Fourteenth Amendment, in which he grapples with some of the tough issues that position presents. Pilon's argument, and my response thereto, will appear in a forthcoming issue of Liberty magazine.
In his letter to The Freeman: Ideas on Liberty, Pilon objects to my use of the term "libertarian centralism." I remain comfortable with characterizing Pilon's position in that fashion. The interpretation that Pilon gives to the Fourteenth and Ninth Amendments confers federal jurisdiction over each and every rights violation committed at any level of government, whether it be a municipal recycling program or a local zoning ordinance. If this isn't centralism, the word has no meaning.
Political power being what it is, centralism in the name of liberty is quite unlikely to lead to liberty. Far too much of Roger Pilon's argument for a strong Fourteenth Amendment rests on the words "properly understood."
But properly understood, the Commerce Clause, to take one example, merely eliminates interstate trade barriersu2014it provides no justification for the mammoth administrative state erected in its name. Nonetheless, any antifederalist transported to late-twentieth century America would consider himself vindicated on seeing what centralism in the name of liberty has wrought.
Murray Rothbard well understood the fragility of parchment barriers to state power. In For A New Liberty he wrote of "the inherent tendency of a State to break through the limits of its written Constitution." Rothbard quoted none other than John Calhoun to make the point: "it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government…will be sufficient to prevent the major and dominant party from abusing its powers."
Pilon sees in the Fourteenth Amendment an effective check on such abuses. I see it as a source of further abuses. Collectivists in Congress and on the federal bench will seize on the expansive construction of the amendment Pilon urges to subvert the very liberties he seeks to secure. In so doing, they are unlikely to be restrained by what Pilon views as the proper understanding of the amendment.
Fragmentation of political power, evenu2014perhaps especiallyu2014when such power is invoked in the service of our natural rights, is a surer guarantor of liberty than the goodwill of federal legislators and judges. I'd have thought that this was a respectable position for a libertarian to take. But if, as Bolick and McClaughry suggest, this be heresyu2014then make the most of it.
Gene Healy is an attorney practicing in Northern Virginia.