No, State Governments Have Not Been the Sacred Hearths of Human Liberty in America. Why Do You Ask?

The extremely-sharp Miles Kimball quotes Randy Barnett, who is… not so:

Randy Barnett: Growing up, I was like most Americans in my reverence for the Constitution… Until I took Constitutional Law at Harvard Law School.

The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First was the Necessary and Proper Clause in McCulloch v. Maryland (1819)..

WTF!? To declare, given the ends that an authority shall aim at, that it has the powers “necessary and proper” to attain them is not “obviously power-constraining”. It turns the ends from being a pious hope to something capable of accomplishment.

Moreover, McCulloch vs. Maryland is in no sense an unleashing of the powers of the government. The decision, in fact, constrains government: it shrinks the powers that the government of the state of Maryland has. At most, it’s zero-sum. It sets the powers of the federal government high: the Second Bank of the United States can operate in Maryland. It sets the powers of the state government high: the state is prohibited from using its taxing power to make operation of the Second Bank of the United States impossible.

Sometimes government power should be at the local level; sometimes the state level; sometimes the national level; sometimes the global level. Circumstances alter cases. But to say that it is a rule or that there should be a strong presumption that governmental powers exercised at the state level create more freedom than powers exercised at the federal level is just weird.

Or, rather, it is just weird unless we look at the historical context. Then we see where Randy Barnett is coming from:

Historically, in America, to expand the powers of state governments relative to those of the federal government has not been the road to victory for human liberty. Rather, it has been the reverse. It has been the road to expanded slavery, to Jim Crow, and to regressive rent-extraction to local elites via the county courthouse and that statehouse.

A strong predisposition that states rather than feds should wield power has no proper place in libertarian thought. But it has a very strong place in American libertarian thought. Why? Because it is the keystone of the arch that has been the libertarian-racist alliance here in America since the 1950s. That alliance has done so much to bring shame to libertarian political philosophy and political philosophers. And it continues to wreak its damage today.