Can Civil Rights and States’ Rights Coexist?

At the risk of beating an already dead horse, I would like to address one final issue raised by the saga of Kim Davis , the Kentucky clerk who refused to dispense marriage licenses in protest over the Supreme Court’s gay marriage ruling. When I made the argument last week that the states have the authority to make their own determinations on matters such as this, many people were flabbergasted that anyone still believes in constitutional limits on federal power or that anyone still finds decentralization to be politically desirable.

The arguments against decentralization typically fall back on one basic premise: that centralization is a prerequisite for the attainment and preservation of civil rights. “After all,” proclaim the naysayers, “the federal government prevented State X from doing Bad Thing Y, so centralization is not only desirable, it is downright necessary.”

It’s not difficult to understand why people hold this perspective. When the Supreme Court began to issue pro-civil rights decisions midway through the twentieth century, it ended legal segregation and other methods of discrimination against blacks, often by state and local governments, in a centralized manner. Many people interpret this to mean that political centralization was the only way that minorities could have secured their civil liberties.

Even the ending of slavery is perceived as something that only a centralized government could have accomplished. But this point is not as conclusively true as it might first appear, since northern states put slavery on the road to extinction beginning in the eighteenth century while the federal government was still passing fugitive slave laws and pushing, with even Abraham Lincoln’s approval, for a constitutional amendment to permanently protect slavery.

Similarly, the federal government gets all the credit for the civil rights movement, despite being late to the game. For instance, when the Supreme Court ruled in Loving v. Virginia that state laws against interracial marriage were unconstitutional, it was 20 years behind the first state government’s ruling to the same effect. By the time of the Loving ruling, nearly half of the state laws regarding interracial marriage had already been changed by state legislatures or struck down by state supreme courts, and the changing cultural environment was accelerating that pace.

But historical trivia aside, the real question is not if centralized power can ever effect results that are favorable to liberty. Clearly it can. The real question, however, is if a centralized system of government has the inherent tendency to advance freedom more than a decentralized system does.

The Nature of Government

The argument that centralized power is needed to stop legalized oppression is destined to logically break down because it is based on a contradiction. It observes that government can oppress people and take away their rights, but it then seeks to solve the problem that government has created with even more government. In so doing, it ignores the obvious question of whether there is something inherent in the nature of government that makes it a threat to civil liberties and, if so, if entrusting a larger government with the protection of civil rights is a poor long-run strategy.

The answer to both of those questions is obviously yes. Governments across the world and spanning human history have routinely oppressed their own citizens. When the people of Old Testament Israel asked God for a king, the prophet Samuel warned them what a king would do, saying,

“This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. …others (will) plow his ground and reap his harvest, and still others (will) make weapons of war and equipment for his chariots.

“He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive groves and give them to his attendants. He will take a tenth of your grain and of your vintage and give it to his officials and attendants.

“Your male and female servants and the best of your cattle and donkeys he will take for his own use. He will take a tenth of your flocks, and you yourselves will become his slaves. When that day comes, you will cry out for relief from the king you have chosen…”

This is stunningly descriptive of nearly all modern governments, including that of the United States. What’s more, governments have historically behaved in this way. They have sought to tax, enslave, imprison, conscript and otherwise oppress their own people. The instances in which rulers were gracious and liberal (classically speaking) were all too infrequent and sandwiched in between autocratic despots.

In other words, where government has existed, liberty has been imperiled.

Societal Checks on Centralized Power

But throughout history there were other social institutions that protected people from predatory rulers. These institutions were powerful enough to compete with the government’s prestige and demands for allegiance and, in the process, limited the extent to which the state could intrude on its citizens’ liberties. Sociologist Robert Nisbet observed that,

“…it is doubtful whether, in terms of effective powers and services, any king of even the seventeenth-century ‘absolute monarchies’ wielded the kind of authority that now inheres in the office of many a high-ranking official in the democracies. There were then too many social barriers between the claimed power of the monarch and the effective execution of this power over individuals. The very prestige and functional importance of church, family, guild, and local community as allegiances limited the absoluteness of the State’s power.”

Buttressing Nisbet’s point is that some of the historical events most favorable to liberty arose out of resistance to centralized power. The Magna Carta was the result of the English rebel barons’ opposition to King John. The 1689 English Bill of Rights was the result of the Glorious Revolution and opposition to the tyranny of King James II. The Declaration of Independence was the document declaring an act of secession by 13 independent countries from the oppression of Great Britain.

And when the leaders of the French Revolution attempted to combine the fight for freedom with political centralization, the results were disastrous. The resulting Reign of Terror generated widespread violence against and oppression of French citizens, and local governments and the church, whose authority had been greatly curtailed by the revolutionaries, were powerless to stop it.

The Founders’ Design

It was exactly this situation that America’s founding generation feared as they wrote and ratified the Constitution. The members of that generation understood that political centralization was  the most significant threat to liberty, and it was this belief that led to the heated debates over the Constitution in the state ratification conventions. Those concerned about centralization sought explicit limits on the new federal government’s power or tried to avoid adopting the Constitution altogether.

Pennsylvania’s George Bryan expressed his belief that any attempt at a federal government would end in oppression. Bryan argued, “It would not be difficult to prove, that anything short of despotism could not bind so great a country under one government.”

New York’s Gilbert Livingston saw that the way to avoid the tyranny of centralization was to rely on the states. Livingston said, “I conceive the state governments are necessary as the barrier between the people’s liberties and any invasion which may be attempted on them by the (federal) government.”

South Carolina’s James Lincoln was particularly incisive in his criticism, objecting,

“What does this proposed Constitution do? It changes, totally changes, the form of your present government. What have you been contending for these ten years past? Liberty! What is liberty? The power of governing yourselves. If you adopt this Constitution, have you this power? No: you give it into the hands of a set of men who live one thousands miles distant from you. Let the people but once trust their liberties out of their own hands, and what will be the consequence? First, a haughty, imperious aristocracy; and ultimately, a tyrannical monarchy.”

Embedded within Lincoln’s words is not just an accurate description of what the federal government has become, but also the ultimate rationale for decentralization: that liberty depends on self-government and that centralization undermines it.

Federalism and Liberty

All of this leads us back to the question of whether civil rights can survive in political system that protects states’ rights. The answer to that is a qualified yes: they can survive as much as liberty can endure while any government exists. Rights are secure in the exact proportion to which people are willing to fight the government for them and, as such, the size of the government that must be opposed is vitally important.

While it is true that a decentralized government can violate civil liberties, this is no less true when the government is centralized. In fact, because a centralized government is less accountable to the people and has fewer institutional limits on its power, centralization is actually more of a threat to civil liberties.

It should be no surprise, then, that the most brutal and oppressive governments in world history have been centralized, totalitarian states. Hitler’s Germany, Stalin’s Russia, Mao’s China and Pol Pot’s Cambodia were all centralized dictatorships, collectively responsible for the deaths of hundreds of millions of people. But the critics of decentralization never seem to include these governments in their analysis of the effects of centralization. Nor do they consider whether or by how much a federalist system could have reduced the body counts.

Even in the United States, the record of centralization has been a mixed bag. Counterbalancing the federal government’s role in the civil rights movement is 200-plus years of oppressive behavior, including federal fugitive slave laws, the Dred Scott Supreme Court decision and the internment of Japanese-Americans during World War II.

These actions further include America’s wars of aggression that have conscripted its own citizens and killed and maimed millions of innocent foreign people. They include the drug war, the enforcement of which falls disproportionately on minorities. They include the federal government’s claim of the right to tax, spy on and arbitrarily imprison its own people at will.

Why Decentralization?

Considered broadly, political centralization has been significantly more oppressive than decentralization has. To believe, then, in decentralization is not to advocate for the ability of smaller governments to oppress people and violate civil liberties. It is to recognize that the government is an existential threat to these liberties and that as long as it exists, it should do so in as limited a form as possible – limited in the geographical area and number of people it can potentially oppress.

The federalist doesn’t believe that decentralization makes political oppression impossible. Rather, he recognizes that the principal obstacle to human liberty is the state and that a centralized government is more dangerous to liberty than a smaller one. Legal scholar Richard Epstein has said, “The study of human institutions is always a search for the most tolerable imperfections.” When it comes to the government – a human institution – decentralization is more tolerably imperfect than centralization is.

Those who trust centralized government to perfect society delude themselves into believing that they can remove all institutional barriers to the state’s power and then trust the state to not exploit the resulting power vacuum. But he wisdom of the ages tells us this is not so. Montesquieu wrote that “The only safeguard against power is rival power.” Lord Acton concurred, writing, “Liberty depends upon the division of power.”

Not only can states’ rights and civil rights can coexist, in the long run decentralization is absolutely essential to individual liberty.