You Can’t Have It Both Ways, Constitutional Limits and Unlimited Federal Power

It’s been an interesting week. During an interview on the Lions of Liberty Podcast, Libertarian Party National Committee Chairman Nicholas Sarwark caused quite a stir when he called Ron Paul’s support for “states’ rights” “anti-libertarian.”
I wrote an article in response, arguing anybody who cares about liberty should absolutely support “states’ rights.” It caused a bit of a stir of its own. A lot of libertarians and liberty-minded conservatives aren’t sold on the decentralization strategy – and I got an earful. They insist we should harness federal power to ensure states don’t violate people’s rights.

The problem is they want to have it both ways. They want to appeal to constitutional limits on federal authority to stop the feds from doing some things, but they also want the feds to enforce their conception of liberty on the states.

It doesn’t work that way.

The Bill of Rights was never intended to apply to state governments. This is not debatable. The way courts have applied the BOR to the states is through a court invented principle known as the incorporation doctrine. State constitutions have their own bills of rights that limit state governments.

You can’t say the feds can unconstitutionally enforce policies like marriage equality, abortion rights or gun freedom in every state, but then appeal to “state sovereignty” to stop the feds from unconstitutionally enforcing marijuana prohibition or creating a national healthcare system. You gave up state sovereignty when you begged the feds to enforce your preferred policy. You undermined the system. You embraced nationalism. Once you do that, you can’t take it back.

The Unites States are either a union of sovereign political societies with a federal government exercising specific limited powers, or it is a national system with power all flowing from Washington D.C.

You can’t have it both ways.


Michael Maharrey is a journalist, author, and speaker.  He speaks at events across the United States, and frequently appears as a guest on local, national and international radio shows advancing constitutional fidelity and liberty through decentralization.  He has written three books: Our Last Hope – Rediscovering the Lost Path to Liberty, Smashing Myths: Understanding Madison’s Notes on Nullification, and  Nullification Objections: Dismantling the Opposition.  He currently serves as the national communications director for the Tenth Amendment Center.