The study of constitutional law is divided neatly into two categories. The first category concerns the protection of an overlapping set of individual liberties, dealing with property, contract, religion, and speech. The second category addresses the broad array of structural protections whose implementation is thought to indirectly protect those liberties.
One key structural element of the American Constitution involves the design of a two-tier federalist system that distributes government powers between the national government and the states. How should a libertarian, whose natural instincts tend toward lower levels of government activity, think about the way in which federal systems can either strengthen or undermine the constitutional protection of individual liberties?
In dealing with this issue, it has often been asserted that libertarians are all too fond of states’ rights. Consider this critical outburst from Andrew Sullivan’s blog:
A real libertarian should be just as concerned about a State government’s infringement of individual liberty as the Federal government’s. There should be no distinction. Period. Instead, for some strange reason, American libertarians always rail against Federal power and champion the cause of unfettered State power. Why do you think American libertarians historically champion the cause of unfettered State power in the name of "individual liberty"?
The “always” is a bit much, for this diatribe contains serious historical inaccuracies that were rightly exposed byDamon Root writing for Reason Magazine. As he notes, libertarians rose as one to condemn the Supreme Court’s decision in Kelo v. City of New London, which eviscerated the “public use” limitation on the state power of eminent domain by allowing a taking.