In his article “The Irrepressible Conflict,” the historian Frank L. Owsley argued that the doctrine of “State Rights” is a political philosophy of decentralization, a worldview that is provincial rather than national in its orientation. It is concerned not only with the interests of states but also with the interests of regions within states. He noted, for example, the “diverging interests between the Tidewater and Piedmont areas” in Virginia, and the desirability of ensuring that “each region should be able to defend itself against the encroachment of the other regions.” The closer decision-making is to the local level, the more likely that regional priorities can be expressed and defended if necessary.
Like John C. Calhoun, Owsley saw the doctrine of state rights as essential to the defense of minority interests and individual liberty against the tyranny of the majority. He argued that, “It was not a positive doctrine; it did not contemplate a program of exploitative legislation at the expense of other regions.” Its aim was not to vest more power in a group of states for purposes of gaining advantage over other states, but rather to defend important political and cultural ideals against attack by a majority. Owsley, like Calhoun, distinguished between positive and negative rights, between the power to attack and the right of defense. To those who ask, “State rights to do what?” Owsley would say state rights to defend liberty against the tyranny of the majority. The role of government, in turn, is limited to,
…only enough government to prevent men from injuring one another. [The South] was, by its very nature, a laissez faire society, an individualistic society where land, water, and timber were practically free. It only asked to be let alone. State rights, local and regional autonomy, did not make for a uniform, standardized society and government.
It is sometimes argued, by opponents of state rights, that the main right for which the South really had concern was their right to keep slaves. Owsley counters this by highlighting the importance of individual liberty for the political philosophy of state rights, arguing that:
…[economic and social interests] were not the only interests which the state-rights doctrine was expected to protect from an overbearing and unsympathizing national government. Perhaps the greatest vested interest was “personal liberty,” the old Anglo-Saxon principles expressed in the Magna Carta, bill of rights, habeas corpus act, supported in the American Revolution, and engrafted finally in every state constitution of the independent states, as “bills of rights.” These bills of rights guaranteed freedom of religion, freedom of speech, of thought, of press, of assembly, right of petition, freedom from arbitrary arrest and imprisonment, right of trial by jury, and prohibited the taking of property without due process of law – guaranteed, in short, the fundamental rights which Jefferson had called the “inalienable rights of man” and Locke and Rousseau had called the “natural rights” – right of life, liberty, property, and the free pursuit of happiness as long as the free pursuit of this object did not encroach upon the pursuit of another’s just rights.
One objection sometimes levelled against state rights is that the law should be uniform and apply in the same way to all regions and states. This argument was raised by the United States Supreme Court when it reversed the Colorado Supreme Court ruling barring Donald Trump’s name from the Colorado ballot. A similar argument was advanced by those who objected to the Supreme Court ruling leaving the legality of abortion to be decided at state level. To objections based on lack of uniformity between states, Owsley’s answer was:
…it might not make for a neat and orderly system of government, but this was the price of social and economic freedom, the price of bringing into one Union so many different groups and interests.
Owsley observed that this doctrine is often dismissed as cover for morally-indefensible political policies. In the context of the South, when people ask, “State rights to do what?” they are usually attempting rhetorically to suggest that the entire purpose of this doctrine is to disguise the defense of slavery. Drawing upon the history of state rights, Owsley argued that it would make no more sense to question the sincerity of its main proponents, Thomas Jefferson and John C. Calhoun, than it would be to question the sincerity of George Washington and other Founding Fathers who were slave owners at the time when they spoke in defense of individual liberty. Few would ask the American Revolutionaries “Individual liberty to do what?” in an attempt rhetorically to suggest that the Revolutionaries just wanted liberty to keep their slaves. Yet the doctrine of state rights is now at risk of getting buried in the contemporary discourse over slavery. Its roots, however, go far deeper than the 1860s disputes with which it is often associated. Owsley argued:
It has often been said that the doctrine of state rights was not sincere, but that it was a defense mechanism to protect slavery… But Jefferson was an abolitionist, as nearly all the Southern people were at the time the doctrine was evolved and stated by Jefferson, and Calhoun’s extreme doctrine of state sovereignty was fully evolved in South Carolina before the crusade had begun against slavery.
Understood in its broader context, Owsley defends the doctrine of state rights as a means of opposing the increasing centralization of “large and sweeping powers for the national government.” This doctrine not only protects the states from encroachment by the federal government, but also protects individual states from encroachment by other states. Minority interests and individual liberty are better protected by “local self-government and regional autonomy” than by centralized national government. Owsley argues that,
To throw all these interests into a hodge-podge under one government would be to sacrifice all the minority interests to the one which was represented by the largest population and body of voters.
Interestingly enough, liberals have no objection to the idea of local self-government in situations where they happen to share the political philosophy of those seeking regional autonomy. For example, in the United Kingdom, the left-leaning government of Prime Minister Tony Blair was behind the devolution of power to Scotland and Wales, whose local governments were largely favorable to Blair’s own left-leaning politics and his desire increasingly to surrender sovereignty to the European Union. Similarly, in the debates over deportation of immigrants in the United States, liberals have no difficulty defending the right of states like Colorado, California, and Illinois to thwart the federal attempts to arrest illegal immigrants. As the New York Times reported, in Colorado:
A federal judge in Denver on Tuesday ordered federal immigration officers to stop making arrests in Colorado without a warrant…the latest in a string of lower-court decisions rebuking President Trump’s immigration enforcement tactics.
…
“ICE has been acting in a lawless fashion across the state of Colorado,” Tim Macdonald, the legal director of the American Civil Liberties Union of Colorado, said in an interview.
Yet, a principled defense of the doctrine of state rights should not vary based on whether one happens to agree with the political ideology of the state in question. Liberal states legalize abortion, gender transition surgeries for children, civil rights for ethnic hairstyles, and many other policies that conservative states vehemently disagree with. States in the South certainly perceived President Abraham Lincoln’s political and military tactics in 1861 as lawless. When Massachusetts and other New England states had earlier threatened to secede, in 1812, it was never suggested that President James Madison would be entitled to wage war on New England for having the temerity to break up the Union. The objection to the right of any state to secede was only invoked when South Carolina seceded. The same may be said about the tactics of President Dwight D. Eisenhower, who enforced racial desegregation in Arkansas schools at the point of the bayonet, “by federalizing the [Arkansas] Guard troops and sending paratroopers from the 101st Airborne Division,” a move defended by the same people who object to President Trump sending in federal troops to enforce immigration law in liberal states.
It seems state rights to thwart federal law enforcement are very popular with progressives when the federal officers are pursuing goals to which they are opposed, but when the tables are turned and conservative states oppose what they regard as federal tyranny suddenly the doctrine of state rights is seen by progressives as objectionable. When they ask, “State rights to do what?” they imply that states should only have rights to pursue goals of which progressives approve. The principled answer to “State rights to do what?” is—state rights to self-determination and local rules for local concerns.
