A few months ago, in the wake of the Proposition 8 Supreme Court case, a libertarian friend of mine made a Facebook post in which he lamented libertarians’ odd affinity for federalism. “States rights”, he claimed, were not “inherently good.” Federalism was only useful to the extent that it engendered libertarian outcomes, he argued. States can violate individual rights every bit as much as the federal government can, and in such cases we oughtn’t hesitate to use the federal government as a way to maximize libertarian utility. From gay marriage to abortion to flag burning to slavery, states have a poor track record at defending liberty and we must not place so much trust in them. Was my friend right?
I think he was partially right, but overly general about which type of “rights” he’s referring to. I agree that the federal courts can indeed strike down state laws – so long as what they are undoing is a violation of constitutional rights, rather than just overturning anything libertarians would subjectively label a rights violation. The trouble with the second standard is that some people (particularly non-libertarians) have an extremely expansive definition of what rights are, such that virtually any law could be construed as violating somebody’s right to something. If we let the government overturn any state law it likes so long as it’s “defending rights”, there really aren’t many limits to what it can overturn, which opens the door to abuses libertarians would not support.
There are many anti-libertarian state policies that I believe fall beyond the constitutional scope of federal government. I don’t want the federal government to get involved in those things, even if their involvement would yield favorable libertarian outcomes in the short term, because it their doing so would destroy the notion that the scope of federal government is indeed limited.
For example, from a libertarian perspective, both censorship and drug prohibition are rights violations. Fortunately for us, the incorporated 1st amendment defends free speech across the whole country. If some branch of the federal government overturned a state law that censored certain speech, that’s great – they defended the liberty they are constitutionally authorized to defend. But no such explicit protection exists for smoking pot, and the 10th amendment to the constitution essentially leaves states the freedom to craft their own criminal justice systems. So to me, a congressional law which mandated the legalization of marijuana across all 50 states would be an overreach. Of course, I’d be elated by the outcome of universal legalization, and admittedly I probably wouldn’t lose any sleep over the release of nonviolent drug criminals. But if we say it’s okay to ignore the 10th amendment in that case, what would the implications be for the rest of law? Could the federal government then declare education a right and overturn decisions at the local school district?
My friend was correct that states’ rights are not “inherently good”; oftentimes state policies are even worse than the federal ones. In such cases, federalism is frustrating. Whether its marijuana or gay marriage, state-by-state legalization is slow and painstaking work. It’s highly tempting to view the courts as a silver bullet by which to bypass that messiness and get what we want right away. But I am hesitant to endorse the precedent that it’s okay to ignore the constitution when it gets in the way of political convenience. Selective application of 9th and 10th amendments is hypocritical and dangerous. There's nothing anti-libertarian about respecting constitutional federalism,
If we value our ideological consistency, we have to apply the role of federalism evenly across all issues. And if given a choice between the centralization and the distribution of power as a whole, the latter is generally preferable. The framers recognized that, and I think more often than not federalism turns out to be a pretty libertarian feature of our constitution.