It is well known that left libertarians often look towards the benevolent and freedom-loving federal government to destroy the "grassroots tyranny" of state and local governments. Usually they have the decency to admit that they support centralization. Cato Institute fellow, Alan Reynolds, takes a novel approach to the issue in the Washington Times claiming that he supports decentralization and federalism, but opposes the concept of States Rights. He starts off by telling us that some black columnist recently came up with the unique conclusion that during the 50s and 60s "the words ‘states’ rights’ and ‘illegal encroachment by the federal government’ [were] used in place of ‘segregation’ and ‘integration'” by some segregationists. This may be true, but the concept of States Rights goes back much further than the civil rights movement. States Rights was explicitly supported by many of our nation's most articulate defenders of liberty such as John Taylor of Caroline, George Mason, Thomas Jefferson, and John C. Calhoun. Even classical liberals from across the pond recognized the importance of States Rights. After the Civil War, Lord Acton wrote to Robert E. Lee, "I saw in State Rights the only availing check upon the absolutism of the sovereign will."

Conservatives and libertarians supported States Rights for many reasons other than a defense of Jim Crow. They used it to argue against the New Deal, the federal highway system, farm subsidies, housing projects, and a host of other government programs. They even used it as a means to fight Communism. Clarence Manion noted that Joe McCarthy's crusade against Communists was focused on those who were in the State Department, Defense Department, and agencies like Voice of America. This was no accident. Manion realized that foreign policy was the one area that Washington had total sovereignty over. He noted that if communist spies tried to take over the department of interior, they could not collectivize land because of our 48 different state governments. This led him to proclaim that "States Rights is your number one defense against Communism."

Mr. Reynolds has very little use for Old Right heroes like Manion, and instead tells us that in the early 60s he was "passionately in favor of the Rev. Martin Luther King’s dream of treating people as individuals, not as members of arbitrary categories." At the same time he claims that "I was and still am a big fan of decentralized government, otherwise known as federalism or devolution." Reynolds seems to admit that those two ideas were somewhat in conflict. This is because the civil rights movement led to increased centralization of power in America.

How does he reconcile these two positions? He simply recycles the left libertarian line that "States have no rights; only individuals have rights." Reynolds is creating a straw man. No one suggests that states possess any sort of natural or civil rights. The point is that the Constitution, properly interpreted, gives states primary jurisdiction over the federal government's in most areas, and that they possess many legal rights, such as secession and nullification. Secondly, a decentralized government is much more accountable to the people and less prone towards tyranny. Libertarians support States Rights because they restrict the power of the federal government, not because they wish to empower state governments.

These concepts were understood not only by the founders of our country, but by many great libertarian and conservative thinkers such as Ludwig von Mises, James Kilpatrick, Frank Chodorov, and Murray Rothbard.

Reynolds does not seem to be completely at odds with this position. He tells us

The Constitution enumerated a deliberately narrow list of what the federal government could legitimately do, essentially just a common market with a common currency and army. The 10th Amendment added that “powers not delegated to the United States Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So far, so good. He goes on to cite many reasons to support a decentralized government (though they all relate to increasing government efficiency, rather than limiting the power and size of government.) Noting that competition among states will encourage businesses to locate in localities with more economic freedom, Reynolds writes, "States that charge steep taxes for mediocre services invariably repel talented citizens and promising businesses. State politicians can easily be held accountable for results that fail to measure up to other states." He tells us that federalism promotes political harmony among regions with different social and cultural norms, citing how Las Vegas and Salt Lake City have different laws in regards to gambling and prostitution that reflect their political differences.

Reynolds goes on to give many illuminating examples of federal encroachment into state areas such as Roe v. Wade, medical marijuana, the 21-year-old drinking age, the 55 mph speed limit, RICO laws, standardized school curricula, and the Homeland Security department. This is all well and good, but it fails to explain why public accommodation laws or local school segregation are federal matters. While I don't support any of the recent anti-terrorism laws, they seem to be more in the constitutional domain of the federal government than the racial make up of public schools.

What makes issues that involve race somehow different than everything else? Every single reason given to support federalism would promote the view that the federal government should have absolutely no control over state schools. The difference, according to Reynolds is that

As Cato Institute scholar Roger Pilon points out, the states, too, derive “their just powers from the consent of the governed.” States never had any right to provide unequal treatment under the law, regardless whether that meant favoritism (affirmative action) or the opposite (segregation).

Assuming that we accept the Declaration of Independence as a legally binding document, this argument does not empower the federal government to do anything. How cans a decision by judge or bureaucrat in Washington that nullifies a law legislated in a state or locality mean "consent of the governed?" Barry Goldwater noted in The Conscience of a Conservative that while state governments may have duties that go along with their rights, those duties "are owed to the people of the States, not to the federal government. Therefore, the recourse lies not with the federal government, which is not sovereign, but with the people who are, and who have full power to take disciplinary action."

Reynolds would probably argue that because of the 14th Amendment, the federal government had an obligation to ensure that segregation was not allowed. This argument is absurd because the same Congress that passed the 14th Amendment (itself dubiously ratified), also segregated schools and other public facilities in the District of Columbia. This does not mean that segregation was good, but that the 14th could not have been aimed at it.

In the wake of the Trent Lott episode, the political establishment will try even harder to destroy whatever remnants of States Rights remain in this country. It is important for libertarians to defend this important principle. This will not be if most libertarians see more wisdom in Abraham Lincoln and Martin Luther King than Jefferson and Calhoun.

January 9, 2003

The Best of Marcus Epstein