All Commentary
Tuesday, February 1, 2000

States’ Rights and Freedom

To the Editor:

Gene Healy represents a disturbing trend among some libertarians to nostalgically recall the good old days when states were bastions of freedom. Those days never existed; and as James Madison depicts them in Federalist No. 10, even at the founding they were such bastions of tyranny that a stronger national government was called upon to restrain them.

The concept of states’ rights libertarianism is oxymoronic. All libertarians know that states do not have rights. States have powers. The purpose of our federal system is to restrict the powers of both national and state governments.

The Fourteenth Amendment was the product of the most libertarian Congress in history. Properly construed, the amendment’s scope is purely negative in the sense of restraining state and local violations of civil rights.

Let’s see . . . John Calhoun versus Roger Pilon and Randy Barnett? Not exactly a tough choice for libertarians.

—Clint Bolick
Litigation Director
Institute for Justice
Washington, D.C.

To the Editor:

The complete version of the quotation fragment attributed to me by Gene Healy (from my favorable review of Clint Bolick’s Grassroots Tyranny in Reason, October 1993) is this: “Most of those who pass for ‘conservatives’ are proponents of ‘states’ rights federalism,’ a hoary legacy of the days of human slavery.”

There I joined Bolick in criticizing “conservatives” who view the states as a bulwark against federal power, but who have no concern about what the states themselves do to diminish the freedom of their citizens. Examples given are Robert Bork and Edwin Meese III, who champion the Tenth Amendment and dismiss the Ninth.

For libertarians, of which I am generally one, the important goal is not to preserve inviolate some magical balance of countervailing governmental powers, but to protect and enlarge liberty. “States’ rights” in our time has meant unpunished lynchings, Jim Crow laws, denial of the right to vote, exclusion from occupations, and countless burdens and humiliations inflicted on black Americans by racist state governments. When libertarians invoke a higher (federal) power to protect liberty against slavery and its lingering incidents, I think they have a strong case. The principle of “states’ rights” cuts both ways, as Healy shows. The principle of liberty works only to advance liberty.

Incidentally, states have no rights. States have powers. Only individuals have rights.

—John McClaughry
Ethan Allen Institute
Concord, Vermont

To the Editor:

There he goes again. Last August, in a long article in the pages of Liberty, Gene Healy went after my views on the Fourteenth Amendment. My detailed, 7,000-word response appears in the February 2000 issue. Then in the December 1999 issue of The Freeman: Ideas on Liberty, Healy took on Clint Bolick, John McClaughry, Randy Barnett, and me—on the same subject, but with more attention to history than to theory. My response here will be brief.

Healy wants to resurrect “states’ rights” as a brake on federal power. Properly understood, so do I. But in arguing against federal tyranny, he all but ignores state and local tyranny, which the Fourteenth Amendment, his principal target, was designed to address. Thus, he says that “libertarian centralists view the federal government as an indispensable partner in the struggle to protect individual rights.” Yes, we do, but that doesn’t make us “centralists” in any serious sense of that word—because the Fourteenth Amendment, properly understood, affords only limited power.

To be sure, the amendment enhanced federal power by providing federal remedies for state violations of individual rights, which the original design had failed to provide. Most such remedies were meant to be secured through litigation in the courts. Contrary to Healy’s contention, however, that does not authorize judges to engage in “moral theorizing,” although it does require them to invoke the classic common law—as implied by the amendment. And section 5 of the amendment gives Congress, when necessary, the power “to enforce” those provisions. Here again, however, that is not a power “to comprehensively redesign state and municipal codes,” as Healy claims. Rather, it is a power simply to address state violations of rights through “appropriate legislation.”

Have both courts and Congress exercised their powers under the amendment faithfully? Of course not. Whether by design or by misunderstanding, they have often abused their powers. But that is a separate issue, to be addressed on its own terms. Our liberties will be better secured not by abandoning our system of dual sovereignty but by getting it right. That, precisely, is what modern libertarian legal theorists are trying to do.

—Roger Pilon
Vice President, Legal Affairs
Cato Institute
Washington, D.C.

Gene Healy responds:

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 one—no libertarian, at least—who 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 Morley’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 Rothbard—who after all knew a thing or two about libertarianism—would 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 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 barriers—it provides no justification for the mammoth administrative state erected in its name. Nonetheless, any anti-federalist 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, even—perhaps especially—when 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 heresy—then make the most of it.

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