Once someone uses the term “states’ rights” these days, the following conversation is seemingly inevitable:
Person 1: “State’s rights!? Like the Confederates believed in? What, are you a racist!?”
Person 2: “No, I’m not a racist! I just think that the federal government is too strong, that’s all! States have rights too, we’re supposed to have a FEDERAL system!”
Person 1: “Oh, sure! You just think that the states need the RIGHT to discriminate against minorities!”
Obviously, that was an overly simplified (and poorly scripted) conversation. My point is that most people automatically associate the term “states’ rights” with some form of overt or subtle racism. Personally, I believe that extremely few users of the term are racists, or advocate for states’ rights due to race-related reasons. So, that puts me on the side of Person 2. I also agree with Person 2 that the federal government has grown too powerful at the expense of state governments, and that this has damaged the American system of federalism. So, do I agree with Person 2 on the issue of states’ rights?
No, I don’t. My reasoning is very simple: states have powers, not rights. Limited government conservatives often forget that even though the primary problem is currently the federal government, the state governments are almost as bad. Yes, state governments are more local and responsive to their citizens than the federal government, but that isn’t always enough. There are many historical examples of state governments behaving badly.
If you’re curious, I would point you toward the days of the Articles of Confederation before the Constitution. The state governments ran roughshod over the natural rights of individuals while the toothless federal government stood by and watched. Many of the state legislatures accumulated executive and judicial powers to themselves, thereby becoming tyrannical. As James Madison warned in The Federalist Papers, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”
I’ve explained the difference between rights and powers before, so allow me to just summarize quickly. When the Founders bound the former colonies together into one nation by writing the Constitution, they made an important choice. They decided to focus on powers with regard to this new government. Therefore, they granted the federal government specific, enumerated powers. In the 10th amendment to the Constitution, they granted all remaining powers to the states and citizenry. They didn’t grant the states any rights, just powers. States don’t have rights, only the powers allowed to them by their citizens.
A government can only exercise the powers allowed to it by the people. So, by creating a limited national government and leaving all of the remaining powers to the people and the states, the Founders essentially said: Citizens, you can decide what powers to grant your state. It’s up to you. The Founders knew that societies don’t have rights. Groups don’t have rights. Individuals have natural, inalienable rights.
When the federal government overreaches by exercising powers not enumerated to it, its not violating states’ rights. It’s violating the rights of the people, and more specifically, individual citizens.
States should be jealous of their powers, but only those specifically granted to them by their citizens. When the states defend those powers against the overextended hand of the federal government, they’re not defending their rights, they’re defending the rights of the people in their state. If the people in their state wanted government to exercise that particular power, whatever it may be, they would’ve granted that power to their state government. Even if they wanted the federal government to exercise it, they would’ve passed a constitutional amendment to that end.
It’s time to retire the term “states’ rights.” It’s a tired, threadbare term that isn’t descriptive of what most people mean to say when they use it. Instead, we should be advocating for natural, individual rights and for the restoration of our federalist system.
Update: One reader wrote that I mistakenly implied that the Founders “granted” powers to the states via the Constitution. This is incorrect, and I apologize for the unclear wording. In all cases, powers are granted to the states by their citizens, not by the Founders, Constitution, or federal government.