Opinion from a Libertarian ViewPoint

The Myth behind the Federal Power to Strike Down State Laws

Posted by M. C. on July 9, 2022

Again, the distinction here is purely arbitrary, and relies on convenient fictions such as claims that a farmer in Idaho and a lawyer at the Supreme Court are “all Americans” and thus the former must submit to the political power of the latter. These pretensions toward American solidarity only apply in one direction, of course, and are never employed to actually limit federal power. Such ideas endure, however, because they conform to the ideological whims of those who successfully mold and propagate public opinion.

Ryan McMaken

For more than a century, the process of political centralization and state building in the United States has entailed convincing a large portion of the population that the federal government must be the final arbiter of the moral righteousness of every law and policy adopted in every state. The idea began as a novel concept in the nineteenth century when federal policy makers began to use it as a tool of asserting federal control over states. If federal institutions regard a state policy as conforming to federal notions of “rights,” then the policy is allowed to stand. If, not, then the federal government deems the law to be null and void. This negation of state and local policies, of course, is backed with real or threatened coercive force applied by federal institutions.

Over more than two centuries, the regime’s written constitution has been repeatedly reinterpreted to create powers of “judicial review” and enhance federal veto powers over state and local laws.  Today, this power is accepted without question by the overwhelming majority of Americans. 

Moreover, the idea permeates all corners of the political spectrum, so that conservatives and progressives alike can routinely be heard calling for the federal government to step in and overturn local laws by force when those local laws are not to the liking of activists. The modern Left, of course, has long called for federal intervention in every state and local government right down to the local school board. Through this process, for example, even school prayer at a high school sports game has been turned into a federal issue. Conservatives, meanwhile, demand that the federal government void state and local gun laws where conservatives regard these laws as overly restrictive. 

This is even a common notion among self-described libertarians, many of whom insist that it is entirely proper for one government—i.e., the federal government—to impose certain laws on another government—namely, the state and local governments. 

Among advocates of this sort of thing, whether progressive, conservative, or libertarian, it is justified on the grounds that federal intervention must be allowed to “protect rights”—with the federal government also defining rights to fit federal preferences. Moreover, the central government in these cases is to be the sole judge of its own laws and policies, and not subject to any intervention from any other government for purposes of protecting rights, or anything else. 

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