The Use of States’ Rights in the Battle Against the Federal Government
February 5, 2024
Rothbardians don’t worship the U.S. Constitution. In fact, Murray regarded the Constitution as a centralizing coup against the Articles of Confederation, which weren’t ideal either. But, as Murray also taught us, we have to decide how to cope with current realities to best advance the cause of liberty. Right now, the big danger comes from brain-dead Biden and his gang of neocon controllers. They want to gain control over the entire world. How do we stop them?
One tactic that can be very useful in doing this is to stress certain parts of the Constitution. In particular, we need to emphasize that the United States, which used to be called “these United States” was founded as a compact between the states. The federal government possessed only limited and carefully enumerated powers.
Some libertarians object to this. They point out that only individuals have rights, not states. That’s true, but states’ rights aren’t in conflict with individual rights. The President of the Mises Institute, the great
Tom DiLorenzo, explains why not:
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“The idea of states’ rights is most closely associated with the political philosophy of Thomas Jefferson and his political heirs. Jefferson himself never entertained the idea that “states have rights,” as some of the less educated critics of the idea have claimed. Of course “states” don’t have rights. The essence of Jefferson’s idea is that if the people are to be the masters rather than the servants of their own government, then they must have some vehicle with which to control that government. That vehicle, in the Jeffersonian tradition, is political communities organized at the state and local level. That is how the people were to monitor, control, discipline, and even abolish, if need be, their own government.
It was Jefferson, after all, who wrote in the Declaration of Independence that government’s just powers arise only from the consent of the people, and that whenever the government becomes abusive of the peoples’ rights to life, liberty, and the pursuit of happiness it is the peoples’ duty to abolish that government and replace it with another one. And how were the people to achieve this? They were to achieve it just as they did when they adopted the Constitution, through political conventions organized by the states. The states, after all, were considered to be independent nations just as England and France were independent nations. The Declaration of Independence referred to them specifically as “free and independent,” independent enough to raise taxes and wage war, just like any other state. See this.
That is why the political heirs of Thomas Jefferson, mid-19th-century Southern Democrats, held statewide political conventions (and popular votes) to decide whether or not they would continue to remain in then voluntary union of the Founding Fathers. Article 7 of the US Constitution explained that the states could join (or not join) the union according to votes taken at state political conventions by representatives of the people (not state legislatures) and, in keeping with the words of the Declaration, they also had a right to vote to secede from the government and create a new one.”
Lord Acton, one of the greatest nineteenth-century English classical liberals, strongly supported states’ rights. He saw in this concept a necessary bulwark for liberty. He said this in a letter he wrote to Robert E. Lee after the War Between the States:
“I saw in States’ rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. The institutions of your Republic [i.e., the Confederate Constitution] have not exercised on the old world the salutary and liberating influence which ought to have belonged to them, by reason of those defects and abuses of principle which the Confederate Constitution was expressly an wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.”
Her is how Lee answered Lord Acton:
“While I have considered the preservation of the constitutional power of the General Government to be the foundation of our peace and safety at home and abroad, I yet believe that the maintenance of the rights and authority reserved to the states and to the people, not only are essential to the adjustment and balance of the general system, but the safeguard to the continuance of a free government. I consider it as the chief source of stability to our political system, whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it. (emphasis added)”
Nowadays many people imagine that a society needs to have a central sovereign power to rule over it. But this is an idea that developed late in European history, beginning with the absolute monarchs of the 17th century. Before that, there were many competing jurisdictions,and states’ rights was the American attempt to return to the older tradition. Tom Woods gives an excellent account of this history:
“I have plenty of students for whom Daniel Webster’s conception of an unbreakable union is so familiar, since they’ve all learned what American history they know from an absurd Lincolnian point of view, that they cannot imagine any other way of organizing society. They honestly believe that voting guarantees that only good legislation will be enacted, and that to defy “majority rule” is to commit some kind of blasphemy. They cannot break out of the model of the single, irresistible sovereign voice; they believe it is this that makes a society wealthy and strong.
Yet it was in the context of a very different model of society, in the Middle Ages, that Western liberty took root. The modern idea of sovereignty simply did not exist. As Bertrand de Jouvenel observes of our day and theirs,
A landlord no longer feels surprised at being compelled to keep a tenant; an employer is no less used to having to raise the wages of his employees in virtue of the decrees of Power. Nowadays it is understood that our subjective rights are precarious and at the good pleasure of authority. But this was an idea which was still new and surprising to the men of the seventeenth century. What they witnessed were the first decisive steps of a revolutionary conception of Power; they saw before their eyes the successful assertion of the right of sovereignty as one which breaks other rights and will soon be regarded as the one foundation of all rights.
In such a society, where a multitude of legal jurisdictions abounded and no single sovereign voice could be found, the king did not make the law but was himself bound by it. Law was something to be discovered, not made (as with the absolute monarchs and parliaments of the modern age). In his classic study of Cardinal Wolsey, Alfred Pollard described the decentralization of power that characterized the Middle Ages, as well as the lack of reliance on legislation:
There were the liberties of the church, based on law superior to that of the King; there was the law of nature, graven in the hearts of men and not to be erased by royal writs; and there was the prescription of immemorial local and feudal custom stereotyping a variety of jurisdictions and impeding the operation of a single will. There was no sovereignty capable of eradicating bondage by royal edict or act of parliament, regulating borough franchises, reducing to uniformity the various uses of the church, or enacting a principle of succession to the throne. The laws which ruled men’s lives were the customs of their trade, locality, or estate and not the positive law of a legislator; and the whole sum of English parliamentary legislation for the whole Middle Ages is less in bulk than that of the single reign of Henry VIII.
The great sociologist Robert Nisbet described medieval society as
“one of the most loosely organized societies in history.” Political
leaders who desired centralization found themselves up against the
historic liberties of towns, guilds, universities, the Church, and
similar corporate bodies, all of whom guarded their (often hard-won)
liberties with great vigilance, and all of whom would have been baffled
at the modern idea that a single sovereign voice, whether of a king or
of “the people,” could on its own authority have redefined or overturned
those rights, whether or not “majority rule” sanctioned it.
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Our “democracy” today feels itself bound by no such obligations, and routinely overturns settled ways of life in one community after another. The myths of democracy — that it is necessary for economic prosperity, that it guarantees that government will not become abusive, that it ensures that the “will of the people” is expressed in law — seem more absurd and ridiculous than ever. Today we have a two-party system that is so utterly corrupt, so totally dominated by crooks and ignoramuses, and so deliberately rigged against any outside challenger — and with a media positively wedded to the current arrangement — that it is beyond laughable to speak in any way of “the will of the people,” if such a thing can be said to exist in any case. I’m sure the same students who reject nullification as treason against the holy will of the majority would defend the upcoming Iraq war as a reflection of the will of the people, despite the fact that “the people” had virtually no antiwar candidates to vote for.” See this.
There are two basic methods a state can use to resist federal tyranny: interposition or nullification and secession. (Some people distinguish between interposition and nullification, but for our purpose, we don’t need to do it.) Kirpatrick Sale explains why we need these measures today:
“But I for one cannot believe that what we have seen in the last six, much less the last fifty, years gives any confidence that the federal government is capable of giving the American people the freedom, “the freedom to govern themselves,” that they ought to be living under. Capable of giving them ever-mounting entitlements, and binding their lives with regulations (the Federal Code book is now 175,496 pages, 117 times bigger than the Bible), and saddling them with an impossible-to-pay $18 billion dollar debt, and intruding unrestricted into private communications, and providing various teats on which they can suckle, yes. But freedom? No.”
That is why I believe that the death of states’ rights is really a clarion call for states to defy the federal government and assert their rights independently of Washington and its minions. I care not how it be done, but the two classic methods long ago outlined by Jefferson and Madison in the Kentucky and Virginia resolutions of 1798 are nullification and secession, and I think those gentlemen would see the wisdom, and the necessity, of bringing them back now. Already a majority of the country (54 per cent) feels that states should ignore federal programs they don’t agree with (Rasmussen Poll, 2015) and a quarter (23.9 per cent) are in favor of secession (Reuters/Ipsos poll 2014). That is fruitful ground.
I care not how it be done, but I would say that unless it is done,
starting now and working gradually but unreservedly, this country would
not be worth living in. I do not believe that most people want to live
under a regime where five unelected liberals regulate their most
intimate social institutions, a fumbling Congress cannot keep the NSA
from invading our privacy, imperial presidents can waste trillions of
dollars and millions of lives on pointless wars, middle-class income has
withered for thirty-five years while the obscenely rich get obscenely
richer, individuals increasingly feel that they have no voice or
influence in the matters that effect their lives. And they shouldn’t
have to.
If the states, and the people, are going to have rights, they will have to assert them on their own, and the time would seem to be now, with this outrageous but prescient Supreme Court decision. For if it is not done now, it will not be done ever.
This appeared originally in the Charleston Post and Courier
Let’s do everything we can to promote states’ rights and resist federal tyranny
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