Why the Constitution Matters (But States' Rights is a Sham)

As a Libertarian, I value individual liberty.  All liberty, not just the liberty I approve of.  This is what separates Libertarians from Conservatives these days.  You see, Conservatives gleefully adorn themselves with the raiments of liberty when it suits them.  Freedom of "my speech", freedom of "my religion", and so forth.  One of their common rallying cries is "States' Rights".

If people truly valued liberty, states' rights would be a consistently good and happy thing.  In the face of an increasingly powerful Federal government, states' rights is an important check and balance in the application of government.  There are many ways to get things done, and the people in Washington DC don't have a monopoly on smarts.  When it comes to government services, such as Medicare and Medicaid, sometimes it makes sense to leave it to the states to decide for themselves what they are willing to provide to their citizens with their tax money.  

Just cutting out the loop between paying Federal taxes and the Feds giving money back to the states to do things would improve the efficiency of such services.  The main objection to this idea from the Left is that services would not be uniform:  Some states might give "adequate" benefits while others act chintzy and give "less than adequate" benefits, so we need the Federal government to ensure that everyone has the same opportunity to receive aid.  Liberals fear a "race to the bottom" for the quantity and quality of government services, as states with richer benefits bear the brunt of migration of the disadvantaged into their jurisdictions.  This itself is a consequence of a common Conservative response, "if you don't like it, move".  Liberals then point out that the people most likely to need aid are those least able to move in the first place.

This argument is based purely on the basis of equal access, which in itself is a sound government principle, at least in theory.  The 14th Amendment's primary showpiece is the "equal protection" clause:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What this says, straight out, is that states can't violate people's rights any more than the Feds can.  And yet, we see on a near-continual basis efforts by state legislatures to limit people's rights and liberties.  The argument for it?  Yep, "states' rights".  Where does this idea come from?  It comes from earlier in the Constitution, namely the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The original idea behind the inclusion of this Amendment was a fear by the Anti-Federalists (folks like Thomas Jefferson, Patrick Henry, and George Mason) that the Constitution would contain more power than was prudent for America's central government.  A prescient concept, as we can see from subsequent history.  Even before the ink was dry on the whole thing, we were dealing with limits on freedom such as the Sedition Act, championed by that paragon of liberty, John Adams.  He has the dubious distinction of being just the first of many politicians whose tune changed after being elected to power.

Here are some examples of abridgement of liberty at least partially defended by the "states' rights" argument:

* The Fugitive Slave Act of 1850, and the subsequent Supreme Court  decision Dred Scott v. Sandford, which held for the protection of Southerners' "property" throughout the country.

* The "separate but equal" principle of state-imposed racial segregation, based on Plessy v. Ferguson.  Several states passed Interposition Resolutions proclaiming that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 violated states' rights.  Those Federal statues also struck down state laws prohibiting interracial marriage.

* Arguments for state laws that limit womens' access to abortion frequently cite States' Rights, or conversely arguments against Federal laws preserving abortion rights (e.g. Ron Paul's positions on the issue).

* Blocking the closure or consolidation of National Guard installations during the 1993 Defense rollbacks.  (Of course, this did not inspire states to take over their funding.)

* State laws against consensual sex acts (so-called "sodomy laws"), which were used overwhelmingly to punish homosexuals.  These were struck down by Lawrence v. Texas in 2003.

* Current battles over same-sex marriage in opposition to the Reciprocity Clause.  The Defense of Marriage Act is an example of a Federal law giving states permission to discriminate and infringe rights.

* Many local battles over church-state separation have hinged on pro-church advocates citing states' rights in cases where non-Christian religions are subject to discriminatory legislation.  In her book, Pagans and the Law, lawyer Dana Eilers documents numerous past state and local laws and ordinances denying tax-exempt status to Neo-Pagan congregations.

In his "It's a Free Country" blog, Alec Hamilton quotes Constitutional scholar and University of Texas law professor Sanford Levinson saying,

There is a prevalent paradigm that Democrats like centralized power while Republicans favor states’ rights, but closer inspection does not show this to be always the case. Many of those who favor states’ rights over regulation of marijuana, for example, identify as Democrats. Levinson has an explanation: 'Federalism arguments are often opportunistic. It really depends, often on what the issue is.'

Because of this, I think it is crucial that Libertarians avoid using States' Rights principles in their arguments against restrictive Federal or state laws.  States are no more noble than the Federal government is.  Sure, it's tempting to attempt to address a Federal-level infringement by trying to exempt your state from its influence.  But cannot liberty stand on its own, without appealing to a concept that has been used so many times to take freedom away from people?

If a liberty is worth defending, it is worth doing so on its own merits, not by appealing to an argument so flawed that it can be used with equal ease to take liberty away.