The Danger of “States’ Rights”

by | May 19, 2012

Defenders of freedom must reject the entire notion of “states’ rights” and instead embrace the principle of individual rights.

As the race for the White House heats up, we will likely hear more talk about “states’ rights.” Many conservatives have voiced support for “states’ rights.” The concept is often presented as an antidote to growing federal control over the economy and our lives. But is it an antidote, or is it simply another form of poison?

There are two aspects to “states’ rights”: the “right” of each state to establish laws independent of Washington and the “right” of each state to nullify a federal law. In principle, these are the same thing.

For example, advocates of “states’ rights” hold that each state should be allowed to legalize abortion or ban it, permit gay marriage or prohibit it, restrict gun ownership or not. If Texans want to ignore the Clean Air Act, they have a “right” to declare the law null and void within the borders of the state. In other words, the citizens of each state should be allowed to determine what they will permit and what they will prohibit. It is, according to the advocates of “states’ rights,” wrong if Barack Obama mandates universal health care across the nation, but it is perfectly proper if Mitt Romney does so within Massachusetts.

At root, “states’ rights” holds that the citizens of a state are not to be limited by the principles of individual rights. As long as the majority within a state support a policy or program, anything goes. This is not a defense of individual liberty, but its negation.

Individual rights recognize and protect an individual’s moral right to act according to his own judgment, as long as he respects the mutual rights of others. “States’ rights” holds that the rights of individuals may be violated whenever the majority chooses to do so. The Founding Fathers rejected this idea. For example, James Madison wrote:

There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong.

The Founders were opposed to tyranny in any form, whether manifested in a King or manifested in an uncontrolled majority.

Certainly, the unprecedented power grabs emanating from Washington should be opposed. But granting more power to the state governments is not the solution. Turning America into fifty tyrannies will not achieve free markets and individual liberty.

Defenders of freedom must reject the entire notion of “states’ rights” and instead embrace the principle of individual rights.

Brian Phillips is the founder of the Texas Institute for Property Rights. Brian has been defending property rights for nearly thirty years. He played a key role in defeating zoning in Houston, Texas, and in Hobbs, New Mexico. He is the author of three books: Individual Rights and Government Wrongs, The Innovator Versus the Collective, and Principles and Property Rights. Visit his website at

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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