Comment Check: Ron Paul, States’ “Rights,” and Liberty

Recently, I’ve been having a running discussion on this blog about the US Constitution, the concept of “states’ rights,” and individual rights. It’s been very illuminating, as I’ve discovered that many so-called “libertarians” are in fact quite confused about what the US Constitution means, and have gotten mixed up in other ideas

Users such as “Jim” and “The Torch” (real name Johnny Storm, I’m assuming) have made the claim that the federal government should not, and is prohibited by the Constitution, from protecting people’s rights when they are being violated and trampled on by the state governments. Their reasoning is that the Tenth Amendment prohibits this, because the Founding Fathers were setting up a federalist system. This argument would actually hold water…if it was being presented on July 8th, 1868.

That’s because the next day, the nation formally adopted the 14th Amendment, which gives the federal government the power to enforce the Bill of Rights against the states, which now how to abide by it as well. (Little known fact: prior to the 14th Amendment, the Bill of Rights were not binding on the state governments; they only applied to Washington.)

These folks are both fans of Ron Paul, and have cited this column he wrote on Lew Rockwell’s site about state vs. federal:

It’s been a tough summer for social conservatives, thanks to our federal courts. From “gay rights” to affirmative action to Boy Scouts to the Ten Commandments, federal courts recently have issued rulings that conflict with both the Constitution and overwhelming public sentiment. Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role.

The practice of judicial activism — legislating from the bench — is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.

Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment “right to privacy.” Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights — rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.

Ron Paul here is, regrettably, wrong on many, many levels. First, he asserts that “is no right to privacy nor sodomy found anywhere in the Constitution.” While those rights are not explicitly enumerated, they do exist as they are covered by the Ninth Amendment. Second, while we’re on the topic of the Ninth Amendment, Ron Paul screws that up royally. He says that “There are, however, states’ rights — rights plainly affirmed in the Ninth and Tenth amendments.” On this he is so way off base that I’m honest-to-god shocked. There are no “states rights” listed anywhere in the Constitution, there are only state powers. States do not have rights, only individual have rights. The Tenth Amendment doesn’t mention rights at all, just powers, and the Ninth Amendment doesn’t even mention states, just rights!

How Ron Paul, of all people, screwed this up, I do not know. I have a few ideas, all relating to Lew Rockwell and Murray Rothbard, Paul’s intellectual mentors. Namely, Lew Rockwell’s love of the Confederate States of America, which was supposedly built on “states rights” instead of—you know—human slavery.

What Ron Paul, his fans, and his mentors are doing by chanting “States Rights!” is not promoting liberty. Instead, they are merely exchanging one set of chains, one set of masters, for another. They are not actually casting off said chains for liberty. That’s just not liberty, and you’re not a libertarian—though if you’re the kind of guy who is a Neo-Confederate, then you have bigger problems than just states rights.

This is a disturbing trend in libertarian circles, brought on by the Ron Paul campaign and many of his fans. I think that many of them are genuine lovers of liberty, and want to see as much of it as possible. But when you’re making the argument that only the federal government cannot oppress us, but the states somehow can—as well as making very specious arguments that rely on ignoring several crucial parts of the Constitution—you’re damaging liberty, not helping it. And we really don’t need any of that.

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