States Rights vs Individual Liberties

Conservatives, in particular Libertarians, continuously insist that they are strong advocates for ‘individual liberties’ in contrast to liberals. Both liberals and conservatives will of course claim that their positions favour individual liberty more so than the opposition because after all, nobody wants to be caught out supporting larger government control. However conservatives and libertarians more than often bring up their strong support for individual liberties to the centre of debate and will happily point to their numerous positions over history against the interventions of the Federal government as evidence to this. Libertarians and conservatives do actually have a good track record of opposing much of the actions from Federal government over a course of history, more so than liberals at least, but this doesn’t automatically prove that they have been consistent advocates for individual liberties. This is where the problem lies with many of the positions conservatives have taken and their claim that they are first a foremost for individual liberty. The assumption here is that because conservatives have consistently opposed many of the actions taken by the federal government over the course of history, somehow this automatically equates to them valuing individual Liberties in each position. If you read between the lines however and actually focus on what the positions that conservatives really stood for, you’ll have a better understanding as to why their positions have failed to become mainstream and conventional over time.

This article will be focusing on States rights, the middle man that is so often forgotten in the debate between government and individual liberty. You see, it’s not enough to oppose an invasive Federal government in order to preserve individual liberty, State governments have demonstrated time and time again their own willingness to trample on individual rights themselves. In times when state governments held unprecedented powers, they mandated and enforced laws that greatly restricted the rights of individual Americans. During those times, advocates for libertarianism and conservativism happily stood firm with many self proclaimed progressives on the side of the State governments who enforced these laws, demonstrating just how little their positions has to do with individual rights. You’ll notice, after reviewing much of their positions with objectivity, that Conservatives and libertarians have little issue with big and invasive government, so long as we’re talking about State governments.

States rights and Slavery

The legalization of the institution of slavery was at one point considered a legitimate authority of the states, it was even considered constitutionally legitimate at the time. Even the founding fathers themselves, while they sympathized with abolitionists, considered the institution perfectly justifiable under the constitution:

Jefferson thus acknowledged that slavery violated the natural rights of the enslaved, while at the same time he absolved Americans of any responsibility for owning slaves themselves. The Continental Congress apparently rejected the tortured logic of this passage by deleting it from the final document, but this decision also signaled the Founders’ commitment to subordinating the controversial issue of slavery to the larger goal of securing the unity and independence of the United States.

At that time and into the 19th century the institution of slavery was such a protected and supported State right particularly in the South that it was eventually written as the core grievance to the declarations of secession by the Confederate States in 1860 (3). We’re not going to discuss in depth the causes and instigators of the American civil war in this article as it is an extensive topic best to be left for its own article. What I will say here is that confederate apologists (most of whom are libertarians and conservatives) wouldn’t want to give you the impression that they in anyway condone slavery because they sympathize with Confederate Secession at the time. Their position on the side of the Confederate States is supposedly purely for States rights only, as if the institution of slavery was something completely unconnected to States rights at the time. Slavery was considered a fundamental right of legalization to be left up to the States:

Jefferenson Davis, the then president of the Confederate States:

When the several States delegated certain powers to the United States Congress, a large portion of the laboring population consisted of African slaves imported into the colonies by the mother country. In twelve out of the thirteen States negro slavery existed, and the right of property in slaves was protected by law. This property was recognized in the Constitution, and provision was made against its loss by the escape of the slave.

Declaration of Immediate causes, South Carolina, 1860:

The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.

Libertarians will more than often brush the reality of slavery in the confederacy at that time and insist continuously that slavery was not the key issue to the civil war. They will often try and turn it into an irrelevant topic to the civil war, as if this make the difference to whether it was justified at the time for States to continue. Regardless of whether one could argue that slavery was not the core issue of the civil war, it was by all evidence a deep and relevant issue at the time, especially in the south. When you finally get libertarians and conservatives to come out on their position of States rights and slavery, what will be their response? The most common excuse is this idea that people should get over slavery, that it was just an institution that fitted the times, that it will not return with the restoration of the powers that State governments once held over their residents. But this doesn’t excuse the fact ultimately you be leaving such powers and authority in the hands of State governments today, regardless of whether we think they’ll use it again. If States were given the powers to determine second amendment rights, would conservatives and libertarians be at ease that their right to defence would be left unharmed? Given the activity of the National Rifle Association and conservatives groups over the years, they would not give State governments the benefit of the doubt over such powers. There are of course other excuses made over this extent of State power and the institution of slavery:

The South had the right to leave in peace; slavery is and was morally wrong; though force may be rightly used to end slavery — after all other means for ending slavery have failed — such force must be strictly limited to accomplishing that end and must not violate the rights of third parties by means of taxation, conscription or mass murder;

James Otrowski at made great effort in avoiding defending the rights of State governments at the time in continuing the institution, while justifying Southern secession. So what can we take from this comment? Well apparently James seems to insist that ending slavery is justified after all, provided it doesn’t involve taxation or mass murder, and provided that the Federal government does not infringe on the ‘rights’ of those States delegated by the constitution. This obviously creates a dilemma. Unless it is the position of James that States were constitutionally in their right to continue the institution of enslaving black Americans, there are a number of issues with his argument. Considering that slavery was Constitutionally considered states right at that time, and considering that southern governments were prepared to protect the institution of slavery with force and violence themselves. Considering as well that southern governments refused any further negotiation to ending the institution of slavery through purchase or trade, as James admitted in that very article (4), how exactly was the institution of slavery to be abolished by the Federal government? The answer is, there’s no way out of slavery that James offers us here other than to leave it for the States to decide in the end, which means he supports the rights of States to continue the institution.

What about Libertarian think tank the CATO institute?

Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally–through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim. What the Tenth Amendment says, in a nutshell, is this: if a power has not been delegated to the federal government,

Further down the article:

The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves. Unfortunately, no sooner had those amendments been ratified than the principal vehicle for insuring substantive rights against state action, the privileges and immunities clause of the Fourteenth Amendment, was eviscerated by a deeply divided Court in the Slaughter-House cases (1872).

Though CATO will insist that the people of States rightfully dictate the powers of those States, not the Federal government, this is obviously another way here of implying the States were within their right to continue the institution. Considering that blacks were not even considered persons at the time even under the constitution (5), considering that the majority of southern citizens supported the institution of slavery even prior to the civil war, what else was CATO implying in that article? Well it’s pretty clear regardless of their rational, as with most libertarians, that the rights of States were more justified legally and conveniently at the time than that of the intervention by the Federal government.

I do invite Libertarians and conservatives to come out and deny that their position is that the States should have been left with such powers over individual Americans. I invite them to come out and admit that State governments demonstrated their incapability of upholding individual liberties at that time when delegated such powers. Though I doubt I’d get straight answers on this issue from them again, but one can only hope. Maybe this is exactly what they want? It seems hopeless to get an honest answer from them.

States Rights and racial segregation

You guessed it, racial segregation was at one time considered a States matter and even to this day many individuals, groups, insist that the Federal government had no right intervening in this matter. Imagine an America where the government told you where you could go in public, who you could marry, where you could buy private property, what school your kids could attend, all based on your race. We’ve all heard the tired ramblings of conservatives about the nanny state, about the government getting involved in private property rights, about the government getting involved in private lives, yet merely 40 or so years ago this was exactly what State governments did to private America citizens. Barry Goldwater, the Republican nominee for the presidency in 64’ and one of the leaders of the libertarian movement at that time made his and his party’s position on this issue rather clear at the time.

In the 1964 presidential race, Barry Goldwater ran a very conservative campaign, primarily with an emphasis on “States’ Rights.” As a conservative, Goldwater broadly opposed strong action by the federal government. Goldwater favored the Rights of the states. Namely because a defeat of Civil Rights could not be won on a national level leaving the only alternative — winning in a few individual states where anti Black sentiments prevailed. States’ Rights was thus born as a label and movement to defeat giving Civil Rights to Blacks.

Goldwater opposed the Civil Rights Act of 1964. His stance was based on his view of States’ Rights has been interpreted as an appeal to racist white Southern Democrats, and undoubtedly attracted a few conservative anti Civil Rights bases.,_goldwater_was_a_racist.htm

Some Libertarians would argue however that Goldwater’s position on the civil rights act was purely that of the rights of private businesses. However again, Goldwater was against the overall bill as he believed State governments were in their right to enforce such laws over American citizens in public (6). He made his position over this matter clear again in 1964 again that the Supreme Court decision in the Brown vs Board of education was an abuse of power by the Supreme Court (7). Remember that this Supreme Court decision did not involve private businesses, but the desegregation of public schools between the different races. This ruling eventually lead the way to the dismantling of public racial segregation, and yet many libertarians and conservatives to this day continue to oppose it.

Texas congressman Ron Paul, the 2012 candidate for presidency, has grown a strong cult following across the country and in particular over the internet for the past few years. He is by all means one of the leaders of the current Libertarian movement and was even at one time a third party libertarian runner to the presidency in 1988. So where does he stand on States rights and racial segregation? Well Paul’s position against the 1964’ civil rights act is already well known the public, however Paul and his supporters rationalized this position by stating that he opposed the bill solely for the fact that it put force on private businesses. But what about racial segregation in the public setting? What about racial segregation as a legitimate State authority? Where does Paul stand on this? Well Ron Paul denied that he opposed the other part of the civil rights act, he just opposed the part that involved private businesses. However this contradicts his history, where Ron Paul voted against the honouring of the SCOTUS decision for Brown vs the Board of Education in 1954:

Mr. PAUL. Mr. Speaker, I rise to explain my objection to H. Con. Res. 414, the resolution commending the anniversary of the decision in Brown v. Board of Education and related cases. While I certainly agree with the expression of abhorrence at the very idea of forced segregation I cannot, without reservation, simply support the content in the resolution.

Further down:

In many places in our country the public school system continues to fail many American children, particularly those in the inner city. Research shows that our schools are more segregated than at any point from the 1960s. Some of this is undoubtedly due to the affects of the Brown decision. Do we really mean to celebrate the failures of forced busing? Forced integration largely led to white flight from the cities, thus making society even more segregated. Where children used to go to different schools but meet each other at the little league field,

We must remember that the SCOTUS decision in the Brown vs Board of education case in 1954 was purely based on the public setting and the power of states to mandate racial segregation of American citizens. It did not involve private businesses and the requirements of them to accept integration, yet Paul voted against it. Paul will in the first breath claim that he doesn’t like the idea of forced segregation, yet he supports the very powers that allowed the States to enforce such laws.  Paul will rationalize that the decision of the Brown vs Board of education lead to other laws that would eventually pressure private businesses, which is a rather weak excuse, considering that the SCOTUS ruling specially focused on the public arena. Does Ron Paul believe that states have legitimate authority to racially segregation in the public settings? His positions clearly lead to that direction. Do libertarians and conservatives believe that racial segregation is the legitimate authority of the states? Again, I invite libertarians and conservatives to clarify their positions.

States rights and Sodomy laws

Yes folks, the power of the States have gone so far to point that even at one time what consenting adults did in the privacy of their own homes, on their own property, was regulated. Sodomy laws were those laws that forbid or outlawed certain sexual acts which in particular targeted homosexual American citizens. No, these were not laws just enforced during the 19th century or prior, because as late as 2002 States were still enforcing these laws until the SCOTUS ruling of 2003 in the Lawrence vs Texas case came into effect (8). In 1998 two American citizens, John Lawrence and Tyron Garner were arrested at their residence in Houston by the county sheriff at the time for engaging in consensual intercourse. How did the sheriff find this out in the first place? Well a false report by the neighbour was made of course. But nevertheless these two individuals were arrested and held in jail overnight, and were eventually charged a $200.00 fine. It is beyond my mind that such laws existed and were enforced just over a decade ago, but this was the reality of the matter at the time. You’d figure that conservatives would have jumped for the privacy rights of these individuals right? Well no, in fact after SCOTUS made the ruling many for the most part on the rightwing accused the supreme court of overstepping their constitutional boundaries, of expanding their powers on the States (oh the hypocrisy):

Rick Perry, the then governor of Texas (9):

On DEC-3, Texas Governor Rick Perry commented, in broken English, that “I think our law is appropriate that we have on the books.

This law is appropriate? American citizens, consenting adults, can be arrested on their own property because they chose to engage in a sex act you don’t personally agree with?? Beyond belief…

Texan congressman Ron Paul:

The state of Texas has the authority to pass laws concerning social matters, using its own local standards, without federal interference. But rather than adhering to the Constitution and declining jurisdiction over a state matter, the Court decided to stretch the “right to privacy” to justify imposing  the justices’ vision on the people of Texas.

Really Paul? You don’t have any issue about an invasive State government even in this case? And what excuse will Paul supporters say in this case? That this was a ‘long time ago’? That State governments should have the right to invade individual liberties like this? On ones own property even? Has Paul taken back his position on this matter? If he has I invite his supporters to post a link for me.

Even the years following that law some people still deem it appropriate for State governments to invade private lives and property in this manner. Libertarians like Bob Barr fortunately had their heads screwed on in this case and supported the decision made by SCOTUS at the time, only to get criticized for it by other conservatives:, 2008:

Barr is a wholehearted supporter of the theory of an imperial judiciary that can legalize any activity that it wants as long as the activity occurs in private. Take, for example, the Supreme Court’s decision in Lawrence v. Texas.

Seriously? The extent to how far those on the rightwing are willing to go to support states rights is beyond me…. And what kind of an excuse is this? The ‘imperial judiciary’ was wrong in protecting the private lives and property of American citizens? Seriously? How does keeping government outside of the private lives of two consenting adults equate to ‘anything’ that occurs in private? So what, this means that following this decision, anything in private, including violent acts, crimes, are automatically legal? This is the same excuse about leaving marriage purely to private individuals, this over exaggeration that homosexual marriages will inevitably lead to bestiality, under aged marriage. The excuses are pathetic.


Exactly how far are conservatives willing to go for the sake of States rights? As history demonstrates, there is no real limit. Maybe we can at least rely on them to protect second amendment rights from the powers of individual State governments? Well that seems to be the only thing I can think of. It is however very apparent that individual liberties have taken a backseat to States rights when it comes to policies of libertarians and conservatives, it will always take second place. So the next time a conservative rambles on to you about individual liberties, ask them if they’re willing to support it above States rights, because you may find the answer either hypocritical of their position, or deceptive.











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