Steve G.

Steve Kubby: “States’ Rights” is an Anti-Libertarian Concept

In Libertarian on June 30, 2008 at 5:06 pm

The following is published with the permission of the author, Steve Kubby. Steve Kubby is, of course, a highly respected longtime Libertarian activist, a former candidate for Governor of California, and a popular 2008 Libertarian presidential candidate.

“States Rights” is an Anti-Libertarian Concept

By Steve Kubby

The concept of “FEDERALISM” is properly used to describe a system of government in which sovereignty is constitutionally divided between the federal government and the states.

In contrast, the term “STATES’ RIGHTS” is a fraudulent and profoundly ANTI-Libertarian concept that has no other purpose but to deceive and rob us of our natural, inalienable, inseparable, non-transferable rights as human beings.

The Ninth Amendment says: “The numeration in the Constitution, of certain RIGHTS, shall not be construed to deny or disparage others retained by the PEOPLE.

In other words, just because the Constitution doesn’t mention a particular right, that doesn’t mean we don’t have that right — and those RIGHTS are retained by the PEOPLE, not the State or the Federal Government.

The Tenth Amendment says: “The POWERS not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States and governments have POWERS, but not RIGHTS. Only people can have rights. The US Constitution and Bill of Rights were conceived and written to limit government, not allow it to usurp our rights through some insipid oxymoron like “States’ Rights.”

  1. Now this is the Steve Kubby I remember! Welcome back.

  2. Congratulations you’ve passed the 10-second Constitution quiz.

    Makes me wish I’d voted for you in Denver (for pres that is)

  3. Ah, but the acid test, Steve, is whether or not you can explain this to Stefan…

  4. Good job Steve…I am glad that I voted for you on every ballot that I could in Denver 😉

  5. Is a government, local council etc. not the combination of individuals as rights?
    I agree primarily individuals has rights, but feel it is reductionist to say ONLY individuals have rights. I mean people’s have rights, one country has an international right to sovereignty, not a “power” to sovereignty, but a right. Some people say animals also have “rights”. Political parties have power (and strive to have more power) , but also rights. Do Libertarians not say the LP has a right to spread its message and the people a right to listen to it? Religious institutions, civil unions, married couples etc. etc. also have rights, e.g. not only individuals. I think one should differentiate between different rights as such. There are natural right, property rights, a country’s right etc. Iraq – as a country – has and had the international right (not power) not to be invaded unjustified by the US, but the US govt. (not all individuals, but some individuals representing the government) has violated this internationally accepted right of Iraq.
    An individual has property rights, but so to has a company for instance. We need laws to regulate the different rights of individuals as well. One person’s right can infringe in the other’s rights, for instance a smoker may claim he has a right to smoke, but not everywhere. An airline company or a restaurant has the right to “override” that right and ban smoking, for instance.

    My intention was/is to point out that not only individuals have rights, corporate entities etc. also have…..

  6. Stefan, in this day and age when local governments have become as incorporated as Microsoft or GM, the answer is double no.

    A corporation or other artifical entity does not have rights. Never has, never will. They have powers and privileges granted to the by the consent ot those that let them exist, nothing more. Rights are inherent to individual and not collective existence. That much was made abundantly clear as late as last week in Heller.

  7. So a country has no right then, not right to be not invaded, and then cannot make any claim to the UN that its rights of sovereignty has been violated? This is in essence what you are saying… think again, Michael. A country has powers to exercise its right of existence.

    Another practical example: the different states have different laws (based on rights) with regard to ballot access, how many signatures are needed etc. And a law is the expression of a right.

    Law is a system of rules, usually enforced through a set of institutions, applied to govern a group.

    In the jurisprudence and the law, a right is the legal or moral entitlement to do or refrain from doing something, or to obtain or refrain from obtaining an action, thing or recognition in civil society. Rights serve as rules of interaction between people, and, as such, they place constraints and obligations upon the actions of individuals or groups (for example, if one has a right to life, this means that others do not have the liberty to kill him).

  8. Thank you Steve!

    And Stefan I think it was Mark Twain who said “I love my country all the time and the government when it deserves it.” That being said a country is not necessarily the government.


  9. Good job Steve…I am glad that I voted for you on every ballot that I could in Denver 😉

    me too

  10. This seems to be simply a debate over semantics. Surely Kubby would agree that the decentralist approach to libertarianism would hand as many problems to the local level as possible.

  11. That’s not the same thing as States Rights.

  12. Nope Stefan, you have it wrong. The PEOPLE on a nation has the right to be secure in their persons, lives, and property. You are stuck on the mistaken idea of government being an entity in of itself. Libertarians reject that premise.

    Sovereignty is a condition of a nation, not a right. PEOPLE have the right to sovereignty.

    You still have much learn. Kubby has it 100% on the money.

  13. Gosh, Stefan, you’re such a staunch defender of the supremacy of the state, in all issues, all the time, without limits.

    Are you sure you’re in the right party?

  14. […] posted at Last Free Voice. It may or may not have something to do with […]

  15. Brian, do not twist my words and read things into it. I am simply explaining the issue of representative democracy, e.g. the state and the government represent the rights and wishes of the majority of the individuals it represents. That power can be used (which is legitimate) but also misused (which is illegitimate). A direct democracy, like in Switzerland is perhaps the ideal and better than a representative democracy, but not practical in many countries.

    Michael: I am sure you will agree that congress has the right to write laws in a representative democracy. Those laws may be good or bad, but this refers to their power and right. If you are voting for a candidate for congress, you are voting in effect to give him the power to represent your rights in congress and he/she then votes on your behalf. You are giving him/her the power to make laws, and you have to obey these laws (if the are good).

    Now how I understand it, politicians like Goldwater, Paul, Barr etc. see local government vs. federal government, as the best and ideal. In this sense a state and state representatives can represent the interests of its people better than the state. I am sure you will agree that bringing government closer to people allows for more liberty in general. Now for the future, I could see a case where you can combine Mike Gravel’s “National Initiative” with the individual’s rights
    and wishes with local government (e.g. like from the state vs. the federal government): The state government has much more power vs. the federal government and in order to give maximum power to the individual, the state can organize referendums on specific issues, from important to less important.
    In this way the state government is bound by the decisions/votes of the majority of the individuals in that states. Such a possibility would enhance the liberty of the individual tremendously. This is basically the system they have in Switzerland, with the confederation. Each canton has autonomy over a lot of things.

    Michael: so you really want to say a country does not have a right? Are governments not negotiating with each other in the best interest of their citizens (or what they claim to be)? If country A attacks country B, country B would have no right to object and defend, as their sovereignty is – as you formulate it – a condition of a nation, not a right?

  16. Nope.

    Congress has no right to legislate. We granted them that POWER. Read Article I. Nowhere in there does it say Congress has the right to do anything. Nowhere in the Constitution, in fact. You still don’t see the difference between the two, and that’s where your argument fails.

    I do agree that decentralizing government increases liberty, because as it gets more local, down to the proper level of operation and scope. But that’s proper delegation of powers granted to government.

    Yes, I do: Countries do NOT have rights. No artifical entity, be it a business, a nation, or a robot, does. Only people.

    It’s very simple: artifical entities cannot exist without the people that create them and consent to their existence. In this chicken-and-egg argument, the people were there first (no government or business has ever created a person last I checked). People can live and have lived without government or businesses. But the converse is not true. Government cannot exist without people, and businesses cannot live without them either.

    It all comes back to the people. Always does. Always will. That’s the beauty of the Enlightenment, even if it did miss two major areas (slavery and women).

    Nations engaging in diplomacy are granted that power by their people. If the American people amended the Constitution to pure isolationism ala North Korea–all travel and trade in and out completely restricted–we could do it, and the government would have those powers revoked by the people. (I don’t advocate that, but as an example it makes the point)

    The wrinkle that our system puts into our republican form of government is that the rights of the people cannot be voted away by a majority as in a pure democracy. It doesn’t matter at what level–it just cannot be done. In that respect the people check themsevles.

    OTOH, the people can grant and revoke powers of government. More of the latter and none of the former is what is needed. That’s the impetus behind Senator Gravel’s National Initiative. The flaw in the idea is that most people, when given that direct choice to reduce government, don’t take it.

    Sovereignty is not a condition of a nation, nor a right of a nation. rather, it is a condition and right of the PEOPLE of a nation. “Sovereignty of a nation” implies that a nation as a government entity is of itself independent and ought to be free from all constraints, including those placed upon it by its own people. The Constitutional system of our Republic rejects that “the state exists for the state alone” premise in favor of “the state exists for the people” premise.

  17. Congress has no right to legislate.

    It does in DC

  18. Nope, paulie: That’s also a power.

    Article I, Section 8, Clause 17:

    The Congress shall have Power

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

    No rights there, just powers.

  19. Stephan,
    Perhaps the following will summarize the concepts you’re having troubles with comprehending here. This is a very unique document within our nation’s history. We call this, The Declaration of Independence. Read it carefully and recognize that both John Adams and Thomas Jefferson made an agreement to live to the 50th anniversary of, “The unanimous Declaration of the thirteen united States of America”; a pact that each kept, as they both passed on the same day, July 4 1826. Each was directly responsible for the existence of the document; Adams conceived of it and persuaded Jefferson to write it. Their deaths will have been 182 years ago this coming Friday. They did this so people like YOU would remember the importance of the document and its meaning. Try showing them a little respect and re-read the first two opening paragraphs of the document, as it will clarify the spirit of our nation and hopefully open your eyes to the topic at hand.
    This Friday, 232 years ago, these words were officially adopted by our Nation and forged a path for our Constitution.

    When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
    He has refused his Assent to Laws, the most wholesome and necessary for the public good.
    He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
    He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
    He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
    He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
    He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
    He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
    He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

  20. It didn’t bother me too much when Ron Paul used the states’ rights weasel to keep the good graces of Republicans on social issues, but it’s not acceptable for an LP candidate like Barr to take the same tack. Decentralism may be a pragmatic means to limit government power, as is the centralism of an activist judiciary extending the guarantees in the BoR to the states – but neither has anything to do with libertarian principle. And principle is what an LP candidate should be running for, not winning or spoiling. I’d have been more glad of Ruwart or Kubby polling .1% with libertarian positions than Barr pulling 1-2% with states’ rights.

  21. Scott,

    Decentralization has a lot to do with libertarianism, mainly because it A) reduces the size and scope of the federal government to constitutional limits, and B) drops unnecessary federal laws down to a political level (state or local) where it is easier to eliminate them. For example, which is easier, decriminializing MJ at the state level, or repealing the CSA? The former, by far.

    BTW, the inherent superiority of the rights of the People over the power of any government (see the Declaration of Independence, above, regarding the right of the people to consent to from a government and grant it enumerated powers, and the right to revoke that consent as well) means that a judiciary that upholds those rights over government at any level is hardly “activist”.

  22. My 2 cents regarding this matter,

    Rights are those things naturally exercised, by that which experiences consciousness.
    Rights are an essential commodity to those things which live.
    A tree exercises it’s right to light and thus grows and captures light, should it be deprived of this light long enough, it will die or significantly become disabled.

    Of a being endowed with a higher conscience, Rights are not something to abridge of a people or of any living entity. Governments which usurp such rights do so towards their own self destruction and until a government fully respects complete and unobstructed equal (balanced by the multitude of rights exercised about it) rights, such a government will dissolve of its own actions. History has shown us these things time and time again… so has nature. We’ve a Constitution that was intended to evolve with our greater achieved awareness throughout our future.

    It’s extremely important to understand what rights are. It is not a matter of semantics; it is a matter of clearing our communication regarding the most important commodity known to life and the most important issue with regard to their protections and preservations via our “governments” charge.

    Through examples of nature, we learn; the right to be left alone. In nature, many living beings are equipped with this right. Should a fly land on your skin or on a cow, the fly can be killed slap of our hand or by the whip of a tail, respectively. We do this out of irritation/aggravation and we’ve been equipped to do so for our own health.

    When our forefathers declared that no taxation would be placed on the people within its rather candid expression. It did so because one has the right to be left alone and one also needs sustenance. Such taxation can become a burden and such burdens can be recognized as experienced by our forefathers who wrote the Declaration of Independence as is seen within their charges. These men realized that such burdens can lead to the destruction of the government as well as the people.

    Rights are a very serious matter and were the most important thing when constructing this nation. Do not take them lightly and do not mistake them for what they are not. Without them, we have no hope for the preservation of life but through revolution. Need there be anymore expressed on this matter?

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