The Theoretical Error Of States Rights

A stray remark in this post about the interplay between federalism and individual rights inspired me to quibble. (No, anything but that!) I expound upon that quibble here because I suspect it will be of interest to Readers.

It’s become somewhat respectable to refer to the concept of “states’ rights.” Those who make such arguments are no doubt aware of but bypass the morally questionable history of that phrase and indeed, they are not referring to slavery but rather making a very different argument. They suggest that the Federal government has in some cases overstepped its appropriate role delineated by the Constitution.

Now, in our post-New Deal world, we have three or four generations’ worth of history under our belt of a Federal government with powers reaching deeply and frequently into our individual lives. It’s easy to find examples of this exercise of power having good effects and it’s easy to find examples of bad effects too. The question of the appropriate role of the federal and state governments is not one of substance but one of procedure. Which level of government may make and enforce law “X”?

The problem with calling this dialogue one about “states’ rights” is that states do not have rights at all. People have rights. A “right,” in our philosophical framework, is the ability to act autonomously as one pleases without explanation or penalty. I have the ability on this blog to offer a criticism of President Obama. I do not owe the President an explanation of why I chose to criticize him. I do not owe the state of California where I live or any other state in which my remarks are published an explanation of why I chose to criticize him. Indeed, I do not owe you my Readers any such explanation — the only check on my exercise of my free speech right is that (at least in this venue) if I wish to persuade anyone else to my mode of thinking, I’d better be offering a worthwhile criticism with facts and logic to back it up. But you my Readers are free to agree or disagree with me as you see fit, and just like me, you owe no one any explanation of your response to whatever I might say.

Now, let’s say that shortly after publishing my post critical of the President, the FBI shows up and arrests me. They do owe me an explanation for their action. I can make them answer the question “Why did you arrest me?” What’s more, if the answer is “Because you criticized the President,” then I can compel them to free me and sue them for the damages and indignity that I suffered at their hands. If the answer is “Because you haven’t paid income tax since 1997,” my options are rather different — but then I can gather evidence to demonstrate that I have paid my taxes, or have my attorneys or family do that for me while I’m in custody. And, while I’m under arrest, I can refuse to answer questions. I do not owe the FBI an explanation for why I refuse to answer their questions.

So do states have rights? If it’s not the FBI that arrests me but instead the California Highway Patrol, whose actions are subject to question? The answer is, the CHP stands in the same shoes as does the FBI. It has the power of arrest, but I hold rights against the arbitrary exercise of that power. I don’t have to answer their questions, but they are obliged to answer mine.

The theoretical model I propose is that words like “rights” and “powers” all refer to action — somebody is doing something. But a “right” is qualitatively different than a “power” in that the “right” is something unquestionable and unpenalizable. If California has the “right” to do something, then that thing is not subject to question or penalty if Califonia does it. But everything California does should be subject to question or penalty in some form — in a democracy, the voters may examine any thing the state does that they choose and change the way the state does that thing. If the Governor orders action “X,” and the voters disapprove enough, the Governor is subject to sanction in the form of being removed from office. That’s what it means to be the sovereign, and the voters must be sovereign in a democracy. Consequently, the state can have no rights because the state is an implement of the sovereignty of the people as a whole.

So powers end where rights begin.

Call up MS Paint or some similar basic painting program and set it to black-and-white mode. Draw, freehand, a single-circled Venn diagram with a bisecting line. (I’ll defer the question of which side of the circle is larger for another day.) Use the “fill” function to color one of the two slices of the diagram black. The circle represents the entirety of actions in which the government acts. On one side are individual rights. On the other side are legitimate powers of government. From a distance, the line appears solid and straight. If we zoom in closely, we may find that the dividing line is actually pixellated unevenly because particular cases are sometimes contrary to what appears to be the big picture rule — but it is still a bright line. Either the state may legitimately do “X” or the individual possesses a right to prevent the state from doing “X.”

State powers end where individual rights begin. We can argue about where that line should be drawn another day; maybe you argue for robust state powers or maybe you argue for an empowered citizenry and everyone wants to achieve an appropriate balance even if we can’t always agree on what that balance is. But for today, I want to focus on the basic binary concept of powers versus rights. And governments — whether at the state, federal, or local levels — have no “rights” at all.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I understand your rhetorical point: the 9th Amendment speaks of rights as retained by the people with no mention of the states, and the 10th mentions states but only powers, not rights.

    But are you saying federalism doesn’t exist? [These days, it almost doesn’t, but that’s not my question.]

    [Rhetorically, I must demur on

    It’s become somewhat respectable to refer to the concept of “states’ rights.”

    States’ rights means Jim Crow, even today, and is used by Big Gov’t statists to attack “federalism,” which is more the term of choice.]

    And of course, if we limit the discussion to the 9th and 10th, we let the “general” government [Wash DC] control the debate. Also, I think of the First Amendment, “Congress shall make no law respecting an establishment of religion,” and note that many states still kept their official, established churches, unmolested by 1A.

    Did the states have a “right” to establish these churches? Well, they did leave them established, so you see where “rights” talk get slippery here.

    And of course in the Federalist, Madison kind of mushes together about whether the Constitution is ratified by the states or the people. The people through the states. Well, that’s certainly the form and process they used. As opposed to the central [Wash DC], the states are the people, whereas Wash DC is a “general” gov’t with only limited and enumerated powers.

    Interesting notion you have here, tho, very worthy of thought and discussion.

    • I am not addressing the question of federalism at all, actually. My proposed taxonomy does not distinguish between State and Federal power, because as against either, individual rights trump. The Federal-State question arises because it irks me to hear people refer to the “right” of a State, or worse yet, the “right” of a State actor like a police officer to do certain things. The cop does not have the “right” to lie to you in order to induce you to confess. He has the “power” to lie to you, and you lack the right to prevent him from doing it.

      If the States had the ability to Establish churches, it’s because there was no individual right against state Establishment, and therefore the States had the power to Establish. In the prevailing contemporary legal regime of incorporation via the Fourteenth Amendment, a State lacks this power, but prior to 1868 (or in reality, 1925), a case could be made that a State possessed this power and there was no individual right against its exercise.

      Most things that most states do, most of the time, are within the universe of things that are legitimately within a state’s power. It gets interesting as we get close to that pixellated line in the middle of the Venn diagram.

      Re: has the phrase “state’s rights” become respectable? Maybe not, although I detect the phrase creeping back in to the parlance as part of at least facially legitimate arguments about Federalism.

      • The role of US states isn’t spelled out as is the limited fed govt’s is in the US Constitution. Since they pre-exist the US Constitution, you’d have to look at custom & practice as to their conceptual essence, or to the individual states’ constitutions themselves.

        Of course, since Mr. Lincoln’s war and of course the “incorporation” of the 14th A against the states, we have the worst of all worlds—radical individualism shepherded by Leviathan. This obliterates “subsidiarity” as federalism, the concept of devolvement of power from Wash DC, yet the construction of a coherent right-sized authority, i.e., the states.

        We had previously discussed at LOOG that local govts exist under the authority of their states. Subsidiarity under federalism isn’t a straight line graph from Wash DC to local boroughs.

        The states are more than theoretical entities. They are sovereign in their sphere and in themselves. Or at least that’s how the US understood itself at the Founding. Today, the Supreme Court is our philosopher-king. With few enumerated rights, prerogatives and powers like representation in Congress and the electoral college left, the states barely exist except as semi-autonomous capos for the feds.

        So in the end, we’ll agree, except on whether that’s how it was supposed to or ought to be.

        • ” The role of US states isn’t spelled out as is the limited fed govt’s is in the US Constitution. Since they pre-exist the US Constitution, you’d have to look at custom & practice as to their conceptual essence, or to the individual states’ constitutions themselves.”

          Except for various constitutional amendments.

          ” Of course, since Mr. Lincoln’s war and of course the “incorporation” of the 14th A against the states, we have the worst of all worlds—radical individualism shepherded by Leviathan. This obliterates “subsidiarity” as federalism, the concept of devolvement of power from Wash DC, yet the construction of a coherent right-sized authority, i.e., the states.”

          “Mr. Lincoln’s war”?

          • Sorry, I wrote this above 10th grade level, assuming a) previous knowledge of constitutional law and b) a sense of humor.

  2. I think what you say here is a good point, and I admit one that had never occurred to me. Now I have to spend time trying to decide if for me this is simply a semantics issue, or if it demands rethinking certain positions.

  3. Is “state sovereignty” close enough for government work?

  4. Does the US have the “right” (for lack of a better word) to tell Canada and/or Mexico what certain criminal policies ought to be?

    If I quickly come to the conclusion that the answer is “heck no!”, I then find myself wondering “why shouldn’t I feel that way about Ohio?”

    • In principle, I’d say yes. If the government of Mexico is violating the rights of its citizens, then I think it’s totally legitimate for the US government to intervene to stop them from doing so. Or vice-versa.

      Which is entirely distinct from the question of whether it’s a good idea to do so. Historically, the record’s not great. And frankly, the US government has done such a godawful job with domestic policy that I’d rather they not expand their sphere of influence.

      In retrospect, the Korean War is probably a good example of an intervention that worked out pretty well. If Kim Il-Sung had managed to seize all of Korea, a humanitarian disaster of unimaginable proportions would have ensued. Well, unimaginable except for the fact that it actually did happen in the USSR, China, Germany, Cambodia, North Korea, Yugoslavia, Vietnam, Romania, and elsewhere.

      The problem, of course, is that it’s a lot harder to figure out which interventions are going to work out without the benefit of hindsight.

      • I forgot to bring it back to federalism. Likewise, state governments are far from angelic, and I think that there are definitely ways in which a wise and benevolent federal government could intervene to improve state governance (also, perfectly round squares would make good wheels). But I think that given the kind of federal government we actually have, its interventions probably do more harm than good on the whole, and we’re much better off limiting its activities to the realm of legitimate interstate concerns.

        So, basically, I agree with you, but I took the long way around.

    • I like this hypothetical question at first. But then I ask it again replacing “Ohio” with “Mississippi” and I am less sure…

    • I am a rather federalist guy, but I think the answer to your question is that Idahoans live under the same banner as Ohioans, and therefore have a greater sense of obligation to Ohioans than Canadians. And if Ohio is doing something awful to its citizenry, it is of greater relevance to the Idahoan because it’s happening in land with a shared military, flag, and Constitution.

  5. Let me ask a follow-up question then:

    Does Canada or Mexico (or India or China) have the right (for lack of a better word) to tell the United States what certain criminal policies ought to be?

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