Why Libertarians Should Support “States’ Rights”

During an interview on the Lions of Liberty Podcast, Libertarian Party National Committee Chairman Nicholas Sarwark called Ron Paul’s support for “states’ rights” anti-libertarian.

He had policy prescriptions that were straight-up wrong and anti-libertarian…None of us should be given a pass on having to have actual libertarian positions, or not be able to be called out when you say you oppose marriage equality. You know, that’s not a libertarian position to have. State’s rights is not a libertarian position, and it’s something Ron Paul had pushed for a long time.”

Sarwark appears to take a position common among libertarian centralizers – that they should harness and use government power to enforce their vision of liberty on society. He believes the federal government can and should mandate “marriage equality” on all 50 states.

Many libertarians take this position. They see government power as a tool to create the kind of free society they envision. While they clearly have good intentions, their strategy raises a question: can a society maintain liberty within a system that fails to address the fundamental problem of government power?

Supporters of “states’ rights” don’t believe state governments possess some kind of moral superiority over the federal government. Government power at every level restricts individual liberty. But they do recognize a decentralized system will generally preserve liberty better than monopoly government.

I need to pause here and emphasize I understand that strictly speaking states don’t have rights. Only individuals possess rights in the true sense of the word. The term “states’ rights” serves as a short-hand way of expressing the political relationship between state governments and the federal government in the American constitutional system. States do have political powers they can exercise without interference from the general government. For instance, states have the “right” (or power or authority if you prefer) to define marriage, constitutionally speaking.

Obviously, states can wield power for good or ill. Within the American constitutional system, they posses it for better or for worse. Libertarian centralizers are no more justified in using unconstitutional federal power to stop an exercise of legitimate state authority they don’t like than progressives or neocons who harness federal power for their own ends.

The issue is centralization and concentration of power in one place. Sarwark and other libertarian centralizers support monopoly government – at least when it suits their agenda. The concept of “states’ rights” roots itself in the notion of decentralization.

People arguably have more control and influence over smaller governmental units. Even if they don’t, multiple small power centers make it possible to flee from particularly oppressive jurisdictions and create an environment of “competition” between governments. Competing political entities tend to check each other’s powers. In the case of U.S. states, they can actively thwart the implementation of federal programs and the enforcement of federal laws by simply refusing to cooperate. In a monopoly government system, no such checks on power exist, and individuals have fewer options for escape if government becomes oppressive.

From a libertarian perspective, it seems if governments must exist, it is better to have power dispersed between multiple units rather than concentrated in one all-powerful centralized force. Murray Rothbard and Hans-Hermann Hoppe both argue for a decentralizing strategy to advance liberty.

Rothbard directly opposed the Sarwark strategy of using monopoly government to advance liberty, arguing instead that libertarians should use state power and the Tenth Amendment to devolve centralized authority.

In the U.S., it becomes important, in moving toward such radical decentralization, for libertarians and classical liberals — indeed, for many other minority or dissident groups — to begin to lay the greatest stress on the forgotten Tenth Amendment and to try to decompose the role and power of the centralizing Supreme Court. Rather than trying to get people of one’s own ideological persuasion on the Supreme Court, its power should be rolled back and minimized as far as possible, and its power decomposed into state, or even local, judicial bodies.”

Hoppe delivered a speech in 1997, later turned into a book titled What Must Be Done. In it, he laid out a more general path to move society toward freedom using a bottom up strategy of decentralization.

Because a monopoly of protection is the root of all evil, any territorial expansion of such a monopoly is per se evil too. Every political centralization must be on principle grounds rejected. In turn, every attempt at political decentralization…must be supported.”

The mistake libertarian centralizers make is that they think they can control the power for their own ends – to advance liberty. But the real danger is in the power itself. Once you accept the legitimacy of using government power to advance an end, you can’t put it back in the box. And when others control it, it will eventually be used against you.

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6 Responses to “Why Libertarians Should Support “States’ Rights””

  1. Sovereign MaryJanuary 4, 2017 at 9:08 pm #

    Excellent commentary by Michael Maharrey.
    If the Libertarian Party has as their National Committee Chair the likes of Nicholas Sarwark who is so blatantly clueless of the intent of the 10th Amendment then they are certainly headed in the wrong direction.
    The Libertarian Party seems intent on quickly sinking itself. Putting up Gary Johnson as their POTUS candidate turned out to be a ridiculously HUGE mistake.
    Having Nicholas Sarwark diminish and insult the absolute Constitutional Patriot and great defender of a Limited Government Republic Ron Paul is an act of suicide for the Libertarian Party.

  2. Thomas L. KnappJanuary 5, 2017 at 12:41 pm #

    —–
    For instance, states have the “right” (or power or authority if you prefer) to define marriage, constitutionally speaking.
    —–

    According to the 14th Amendment, that power cannot be exercised in a way that denies people the equal protection of the law.

    And according to the Full Faith and Credit Clause, if you get married in Massachusetts and move to Texas, you’re still married. Which, in practice, means that the least restrictive state definition of marriage is the definition for all states.

    Sarwark is not a “libertarian centralizer.” He’s just a libertarian. A real one, not a social conservative who finds the l-word beneficial for fundraising purposes.

    • Michael MaharreyJanuary 5, 2017 at 1:25 pm #

      The 14th Amendment was intended to protect a very specific and limited set of rights – specifically it was meant to constitutionalize the Civil Rights Act of 1866. Equal protection means that laws generally can not be applied to one group of people and not another. If some state has a law against walking across the street at 3 a.m., it can’t enforce that law only on black people. So, in the marriage context, you could argue that a state can’t prohibit an interracial marriage. But when you start talking about same-sex marriage, you are completely redefining the meaning of the word. I don’t think the 14th Amendment empowered the federal judiciary to do that. The Courts have expanded the scope of the 14th Amendment far beyond its intended scope. As far as full-faith-and-credit, it clearly has limits. One state arguably wouldn’t have to recognize the marriage of a mother and son, if some other state suddenly legalized it. Or bigamy.

      But let’s not get bogged down in the minutia of marriage politics. My concern is with the broader principle at play. When I talk about “libertarian centralizers,” I am talking about people who want to use the power of central government to impose their conception “liberty” on everybody in the United States. In my view, that is using an unlibertarian means in the attempt to reach a libertarian end. I oppose this because I believe the danger of centralizing power is gravest risk to freedom. I think people in each state should strive maximize liberty within the context of that political society, not have liberty imposed from the central authority. I am consistent on this principle. For instance, I also oppose using the Second Amendment to regulate gun laws in states. If you don’t like the gun laws in your state, work through that political system to change them. If you don’t like the marriage laws in your state, work through the political system and change them. Don’t go running to the centralized authority and hand it more power so you can impose your will.

      And just so we’re clear, I’m not a “social conservative” and I ain’t raising any funds over here.

  3. Thomas L. KnappJanuary 5, 2017 at 2:26 pm #

    Michael,

    I wasn’t talking about you when I referred to “social conservatives who use the l-word to raise funds.” I was referring to Ron Paul.

    As a libertarian, I recognize that no level of government has any business defining, licensing, taxing or restricting marriage. Marriage (including same-sex marriage) existed long before the state; in the US Constitution it would be covered by:

    1) The 9th Amendment; and

    2) The “or to the people” bit that states’ rights advocates always seem to forget about from the 10th Amendment.

    Nick’s essential point wasn’t that the federal government should be in charge of everything. He’s not a “centralizer.” His point was merely that violations of rights aren’t magically more legitimate when committed by “the state of Wisconsin” than when committed by “the United States.”

    • Michael MaharreyJanuary 5, 2017 at 2:58 pm #

      “As a libertarian, I recognize that no level of government has any business defining, licensing, taxing or restricting marriage. Marriage (including same-sex marriage) existed long before the state;”

      We are in total agreement here.

      “Violations of rights aren’t magically more legitimate when committed by ‘the state of Wisconsin’ than when committed by ‘the United States.’

      We are in total agreement here.

      Where we disagree is whether the federal government should have the power to enforce a certain view of liberty or to protect people’s rights from state government overreach. Nick’s said to me (in a FB post) “My position is that the Federal government can protect the equal rights of people from state discrimination.” He also said, “The 10th Amendment reserves powers to the states that are not in conflict with the Bill of Rights, including the 9th Amendment, which gives unenumerated rights to the people, not to the states.”

      So, this goes beyond the issue of marriage. It’s a more fundamental disagreement about the extent of federal power in the American constitutional system. Quite frankly, his view of the Constitution and the Bill of Rights as he expressed it is flat out wrong. He thinks the feds have a veto over state laws they define as “discriminatory” and that the Bill of Rights binds the states. I don’t think this is constitutionally sound, and further, I think it is a greater threat to liberty in the long run than whatever violation of rights the state may commit. It is, in fact, a centralization of power. Again, I will reiterate this point: I think people in each state should strive maximize liberty within the context of that political society, not have liberty imposed or enforced by the central authority. I want to make the federal government as irrelevant as possible. Then we can work on the states. Empowering the feds to protect people from “discrimination” – whatever that means (keeping in mind if the feds get to protect, they also get to define) – elevates their status and role in society..

  4. Thomas L. KnappJanuary 5, 2017 at 4:15 pm #

    Michael,

    All of that is interesting, but it breaks down to two arguments OTHER than what is or is not “libertarian.”

    1) A constitutional argument; and

    2) A strategic argument.

    What Nick said is that states’ rights is not a libertarian position. That’s an ideological argument.

    At the constitutional level, a general framework corresponding to what people usually mean by “states’ rights” is obviously present. The federal government only has the powers enumerated; other are left to the states or to the people. The details of that, of course, are arguable, the biggest one being “who decides, and enforces, which of the other two parties this stuff devolves to?”

    At the strategic level, some libertarians believe that “states’ rights” or something resembling it works best to achieve the results implied by libertarian ideology. Others don’t, or at least not uniformly.

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