In Defence of Decentralisation – Political Unionism after Roe v. Wade

By Duncan Whitmore

When asked to account for the inspiration behind his voluminous output, Murray N Rothbard is supposed to have replied “hatred is my muse”. In other words, he could not bear to let the scores of fallacies etched into some statist screed stand unanswered.

I myself receive few visits from this particular muse. In fact, to become riled by the predictably ignorant emissions of mainstream authors, journalists and pundits would probably be detrimental to one’s own sanity – more so today than in Rothbard’s lifetime. (Either way, it goes without saying that I am unlikely to come close to matching the great man’s extraordinary contributions). However, I do experience more than a passing encounter with some combination of wrath and despair in one, particular situation: when confronted by some piece of errant nonsense penned by a libertarian (or fellow traveller) who is in the position to know better.

Those following the political situation in the United States may have heard that the Supreme Court in Washington, DC has recently delivered several, broadly favourable judgments in US constitutional law, including: one striking down a New York gun control law, and, on June 24th, another reversing the landmark decision on abortion, Roe v. Wade.[1] While the effect of the latter is limited to declaring that abortion should be a matter regulated by the states – most blue states will inevitably continue to allow terminations – abortion, with Roe as its centrepiece, has become part and parcel of the US culture war. As such, rather than being regarded as a simple reversal of Federal overreach, it is arguable that the overruling of Roe has symbolised the struggle for the control of America.[2] Indeed, shortly after the decision, conservative commentator Matt Walsh tweeted:

We are not done. We are not satisfied. A federal ban on abortion nationwide is the next step.

Thus, amidst the jubilation of conservatives, traditionalists, states’ rights advocates and their allies, the US Libertarian Party – which has recently come under the control of the Rothbardian/Paulian “Mises Caucus” – was much less enthusiastic:

Allowing five politically-connected lawyers to determine ANY policy for 330 million people contradicts liberty and undermines decentralization. Having a one-size fits all “solution” on abortion has fueled [sic] 50 years of national contention. Judicial oligarchy hasn’t helped.

The Libertarian Party is comprised of those who come down on different sides of the abortion debate. So is the United States as a whole. Whatever one’s position on the [overruling of Roe], political decentralization and peaceful [national divorce] is the clear remedy to the problem.

Pro-lifers, why share a country with those who support the dismemberment of babies in the womb? Pro-choicers, why share a country with those who would take a woman’s right to abort away?[3]

To counter what seems, to me, to be a reasonably sensible take, another user decided to tweet the following:

Regardless of abortion, this is a complete rejection of the idea that there are *any* individual rights that should limit state and local governments. No free speech, no Second Amendment, no trial by jury, no property right against takings. Nothing. Totally unlimited state power.

The idea that state governments should be able to ban whatever they want and violate any right they want because “decentralization” is certainly an opinion, but it’s not one that has anything to do with libertarianism or supporting individual freedom.

This comment fails to grasp in every way the reasons why libertarians should support the decentralisation of state power.

First, from an ethical perspective, such advocacy has nothing to do with a “rejection” of individual rights, and certainly is nothing to do with granting unlimited power to state and local governments. Rather, it simply a question of which, out of two possible options, is likely to be better for individual freedom than the other: a) that a given territory should be unified into one jurisdiction with a single base of decision-making authority, or b) that it should be split into separate, smaller jurisdictions, each making decisions for themselves.

I won’t explain in too much detail the reasons why the latter is the preferable option (those interested may read my longer pieces here and here.) Suffice it to say that, if you had to defend your house from attack, you are likely to stand a better chance if the biggest foe you have to face is some chump with a pocket knife than you would if you were up against a small platoon of heavily armed, professional burglars. Similarly, therefore, if states are the most urgent threats to liberty, it is better to make them smaller and weaker rather than bigger and stronger. Moreover, this fact doesn’t stop short at impacting domestic freedom directly; most of the affronts to liberty infecting the West today – rampant globalisation, military interventionism, the War on Terror, the spying and security state, and so on – have their origins in more than half a century of American imperialism and the quest for global hegemony. Would we have suffered from all of this if what is now the United States had existed instead as fifty, entirely separate countries?[4]

Is it possible – assuming decentralisation is achieved – for some of the localised states to enforce high taxes, generous welfare states, rampant censorship and other abominable incursions to individual freedom? Of course it is. However, surely it is better to know that such outrages will be confined to relatively small territories instead of being imposed across a vast nation of hundreds of millions? Indeed, I expect that the average, “Red state” Republican voter would find much relief in the knowledge that no rabid leftist from the People’s Republic of California will ever be in a position to make decisions over him and his life ever again. This is in addition to the fact that competition between a greater number of smaller states tends to serve as a check upon state power anyway, meaning that any socialistic programmes will be far more limited in effect within the territories they are enacted.

There may well be libertarians, conservatives and others in the US who fetishise the notion of states’ rights as an end in itself; it does, after all, have an historical and cultural dimension as much as a political one. Similarly, “national sovereignty” can often appear as such an end in the fight against globalisation. But for the consistent libertarian, such concepts serve as mere proxies for individual rights in the struggles against what are, for now, the bigger foes. The fight for decentralisation doesn’t mean that smaller states are, in and of themselves, justified institutions which can do whatever they like. If the United States, or any other large and centralised state, was to be split into separate, entirely sovereign jurisdictions, the libertarian should then move onto applying his principles to the newly formed states and municipalities as well. In other words, their powers too should be further localised and decentralised as much as possible.

Second, from a practical perspective, there is unlikely to be any method of working towards a freer world other than decentralisation and secession. In fact, there are only two, other possibilities, each of which will prove fruitless.

The first is to incite a vast revolution in which the oppressed masses rise up so as to smash state power forever, ushering in a paradise of individual freedom and prosperity in which any kind of rule has been vanquished forever. Libertarians who support this path are likely to be idealists; that, in spite of constituting both an improvement to the current position and a way station towards the libertarian ideal, decentralisation is rejected on account of the fact that it requires championing states in some form. For them, one step at a time isn’t good enough – they can tolerate a strategy which aims only at destroying the state entirely in one, fell swoop.

Such a strategy may be just about possible in a relatively small territory in which the government is a mere interference in voluntary, societal institutions which already manage to regulate relations between the people. But for large, nation states consisting of tens of millions of citizens, it can be dismissed out of hand as a childish fantasy. Ignoring, for a minute, the unlikelihood of inspiring a critical mass towards pure anti-statism, a free society will not be possible without a framework of successor institutions to replace the state once it is gone – institutions which have largely been destroyed by modern, liberal democracies. One cannot just defeat the state in order to leave a vacuum. Wars and revolutions with distinctly secessionist aims can meet that requirement in the form of local government (which should, in turn, afford more breathing room for voluntary institutions to develop). But in the absence of such aims, and with no viable, alternative institutions of governance to regulate the new society, any revolution is more likely to replace one ruler of the unified state with another instead of leaving no rule at all. Anyone who thinks otherwise is a utopian dreamer who will never produce a realistic strategy for achieving a world of greater freedom.

The second option is to elect, or otherwise install, freedom-friendly politicians in the corridors of power so as to enact legislation which will guarantee sound money, free speech, private property, low taxes, minimal regulation, and so on.

While this strategy is, at least, more plausible than the first, an initial problem is the difficulty of actually finding politicians who can reliably fulfil such a role. The prospect may have some promise in the United States with characters such as Donald Trump, Ron DeSantis and one or two others such as Thomas Massie and Marjorie Taylor-Greene (Trump also retains considerable influence over the Republican nominations process). Such figures seem to be genuinely, if imperfectly, the antithesis of Washington orthodoxy. But even when such people are elected, there is no guarantee that they will govern as they have preached. Even Thomas Jefferson – the scribe of some of the finest proto-libertarian writing in history – was a considerably worse President than he was a political theorist. Here in the UK, we are currently saddled with a Prime Minister who, in his previous life, was about as pro-libertarian and anti-authoritarian as you could hope for inside the political establishment. And yet the government of Boris Johnson, in addition to having enforced the devastating COVID lockdowns, is a high tax, big spending, warmongering, climate-obsessed cadre that is still beholden to the narrow preoccupations of the political elite. All of this is before we consider the fact that vested interests will either a) corrupt the electoral process to exclude any aspiring politician of genuine promise, or b) ossify the bureaucratic machinery of government so as to frustrate his plans.

This second strategy is likely to be embraced by those who have become frustrated by the fact that liberty is ultimately reliant upon other people wanting to claim and protect it for themselves. Despairing at what they see as the abysmal prospect of this ever occurring during their lifetimes, they resort to the same shortcut as every statist visionary: imposing what they want from on high. As such, they end up confusing goal with method. While some temporary progress is a possibility, the ultimate fault of this strategy is that it leaves intact, or even strengthens, the official jurisdiction of a large, and powerful state, ripe for exploitation by non-libertarians in the future. So let’s say that you do, indeed, manage to elect your perfectly libertarian President or Prime Minister, and let’s say that he does, against all the odds, manage to sweep away vast swathes of state overreach. What happens when the boot ends up on the other foot, with the leftists, statists and socialists regaining control, as they inevitably will? Most likely, you can kiss your precious, freedom-friendly legislation goodbye. Indeed, those celebrating the overruling of Roe might wish to remember that it has been possible only because the US Supreme Court presently consists of a conservative majority. What will happen if and when liberal justices hold sway once more?

Moreover, if the idea of “imposing” freedom from on high was consistent, surely its advocates should be pressing for a world government to do just that for the entire globe? Surely they shouldn’t want to stop short at legislating for the liberty only of American or Britons when every country in the world is in equal need of being set free? And yet these people are likely to be amongst the keenest critics of political unification across existing state lines: that supranational institutions in Brussels, Geneva, Davos or some other far flung corner of the globe shouldn’t be telling residents of Idaho or Iowa whether they may smoke in public places or how much gasoline their cars can consume. So why is the same not true of political centralisation over large territories such as America?

In contrast to these two pipe dreams, decentralisation and secession are well established practices with clear, historical precedents – including the American Revolution itself. Moreover, as I explained recently in my series How to Fight for Liberty, given that liberty is essentially about each person living his own life as he sees fit, motivation towards it is unlikely to be something that is felt universally in abstract terms. Rather, it is likely to differ between time, people and place, generated by local and specific grievances with particular rulers. As such, there is unlikely to be any worldwide, libertarian political movement to speak of instead of hundreds, if not thousands, of much smaller movements, consisting of people wanting to break away from the particular base of power with which they are confronted.[5]

Decentralised Law-Making in a Post-State World

Given that abortion is not the focus of this article, I do not wish to delve too much into that issue specifically (I have a draft essay on both abortion and the rights of children which I hope to publish on Free Life in the near future). However, there are two respects in which the abortion debate serves to demonstrate the necessity of decentralised law-making, not only in our world today, but in a perfect, libertarian society in which every state has been abolished.

The first is what we should do if doctrinal disputes over particular matters continue into a post-state world. As the Libertarian Party’s tweet mentioned, abortion is not a settled issue between libertarians, much less between the population as a whole.

Let us assume, then, that a libertarian world has, indeed, been achieved. There are no states, private property is secure, and only an aggressive act on your part is sufficient to land you in legal trouble. Let us assume further, however, that there is one disagreement: one half of the population believes that abortion rights are compatible with libertarianism, whereas the other half believes that abortion is a grievous breach of the non-aggression principle. For the sake of simplicity, let us suppose also that the first group believes that a foetus can be terminated at any time until birth while the latter group believes that the baby’s legal personhood begins at conception. Further, there is little prospect for compromise or resolution any time soon, with each side believing that the other is practising a moral outrage.

If this was to be the case, the immediate priority would be to keep the peace between these two factions. The only solution possible in this regard would be to allow each group to practise its own interpretation of libertarian ethics without interference from the other – probably in geographically separate regions. It is far better for each half of the world to be utterly convinced that the other half is living in sin than it is to furnish either of them with the wherewithal to impose its views on the other through some kind of “winner-takes-all” form of governance. The former means that at least some semblance of peace can be kept, just as it is today between conflicting and incompatible cultures around the world. The latter, however, would result in almost constant warfare, and probably the re-imposition of some kind of state rule so that the stronger half can force its view onto the weaker. If this is true in a libertarian world, then it is much more true of our actual world which contains much deeper social, cultural, ideological, and religious gulfs.

To be clear, this stance doesn’t deny the possibility that at least one of the two sides is objectively wrong, and that nothing more should be said about the matter. We are not shrugging our shoulders as if to say “nobody’s right, nobody’s wrong”. Each side is still free to condemn the practices of the other and to persuade them to change their minds. Rather, it is a solution that seeks to maximise liberty as best as we can when the existence of a deep-seated disagreement has to be taken as a given. To give a similar example, I think it is an objectively demonstrable abomination for countries such as Iran or Saudi Arabia to execute men solely for the crime of being homosexual, or for engaging in consensual, homosexual acts. I hope that, one day, such practices will cease in those countries. But to the extent that there is, today, a significant number of people in the world who believe that such executions are good and proper, it is much better to have them confined to countries many thousands of miles away than it is to risk having them imposed on our own society here in Great Britain under, say, the auspices of some global government. How much worse could it be if the latter was the case?[6]

In sum, the need to manage an honest disagreement between two, large factions is as important as the need to resolve it, if not more so – especially if those two factions are in a state of agreement on 99% of all other matters. Indeed, it is possible – even likely – that the restoration of freer societies will go hand in hand with a resurgence of Christian ethics, family values and traditional, sexual morality. Such a state of affairs is likely to lead to greater agreement on the ethics of abortion while also relegating it to an empirically, much rarer issue. Even then, however, there is still likely to be strong disagreements over whether termination would be permissible in cases such as rape and/or where the pregnancy is a threat to the health of the carrying mother. It would be a tragedy if a failure to accommodate these differences, pending a possible resolution, was to lead to the unravelling of every other accomplishment that had been made towards greater freedom.

Second, even if a freer world was to attain substantial agreement on this, and other major, ethical questions, there is another way in which abortion indicates the fact that decentralised law making will continue to be essential in such a world. This is that abortion does not concern the conceptual nature of rights, self-ownership, property, aggression and so on. What these things are, or mean, are theoretical matters which can be resolved by pondering them while sat in an arm chair. Rather, abortion concerns the empirical boundaries between where rights begin and where they end, in particular, the point at which a foetus can be regarded as a (partial) self-owner. Every libertarian can agree that a fully capable, adult human has the rights to self-ownership and to private property whereas a sperm cell obviously does not; but where is the line in the sand between these two extremes?[7]

Similar questions actually abound in regular society, ranging from the relatively trivial to grave matters of bodily integrity. For instance, at what volume, and at which time of night, does the playing of music become an aggressive act against one’s neighbours? How much pollution can be emitted from a chimney onto another person’s property before it becomes an invasion? We can all agree that a single particle of soot is unlikely to be actionable while a vast smokestack depositing a ton of ash will be, but where do we draw the line? At what age can a person be presumed to be responsible for the consequences of his actions? If a toddler gets hold of a box of matches and proceeds to burn the house down, we would regard it as a terrible accident; but if a twenty-five year old does the same, we would sooner call him an arsonist. Where is the cut off between one and the other? Other problems concern the interpretation of actions and gestures. For instance, if I have nodded in response to an offer, is my action sufficient to bind me to a contract (and how do we know that a nod means “yes”?)

As I explained in my series on libertarian law, it is impossible to answer any of these questions wholly in the abstract without resorting to an examination of the customary, cultural and conventional context – a context which will differ between time and place. A region populated by young party-goers is likely to be much more lax about the volume of music that may be played at night than a retirement community. An industrial region in which the intense burning of coal and other fuels is an established practice may have lower standards with regards to the spread of pollution than those that might exist between residential neighbours. A society which educates children very strictly in matters of right, wrong and personally responsibility from an early age may have a lower, presumed age of criminal responsibility than one which views childhood as idyllic years of carefree playtime. If, in some places, a “nod” means yes while in another it means a categorical “no”, it is impossible to impose a universal law which demands that nodding means consent has been granted to a contract. As such, all of these are matters which must be settled locally through experience with the actual disputes that tend to arise.

Decentralised law making is, therefore, part and parcel of a free world. Even if the same, basic foundation of a private property order has been established throughout the entire world, such fundamental, libertarian principles would still have be to be refined into specific laws that reflect the idiosyncrasies of the culture, customs and conventions of a particular society or community to which they will apply.

Conclusion

In closing, we may note that it is somewhat ironic that decentralisation should be questioned with regards to abortion given that the latter actually furnishes one of the strongest cases in its favour. Equally ironic is that, if the Supreme Court continues to produce “conservative” judgments – and/or a Trump or DeSantis wins the Presidency in 2024 – it may be the deeply blue states that seek a greater degree of autonomy from Washington, DC. This should be welcomed, even if their motivation is to impose their leftist nonsense unabated amongst themselves. As we indicated earlier, it is far better to confine them to a handful of states than to allow them to spread their poison everywhere else.

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Notes

[1] Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County, 410 U.S. 113 (1973). The case was overruled in Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al., 597 US (2022).

[2] In fact, as with other aspects of the culture war, the extremes of the abortion debate may be represented by only a loud, vocal minority. A recent poll finds that 66% of Americans are moderates, supporting the right to termination in the first trimester, but with far fewer favouring the same for more advanced pregnancies. As author and journalist Naomi Wolf points out, the push for legal abortions up until birth has led to the “pro-choice” movement haemorrhaging support. Indeed, Wolf cites, approvingly, a moderate commenter who, if forced to choose between banning all abortion on the one hand, and abortion on demand, until birth, on the other, would opt for the former as the lesser evil.

[3] Ron Paul himself has written in disagreement of Walsh’s stance:

Pro-lifers should not respond to pro-abortion state laws by trying to pass an unconstitutional law making abortion a federal crime. Instead, they should work to change attitudes and build a culture of life.

[4] Further, preventing the concentration of too much power isn’t a preoccupation solely for those concerned with political authority. For instance, much of the enthusiasm behind cryptocurrency owes itself to the latter’s reliance upon a decentralised network of computers as opposed to a central bank or single, issuing authority.

[5] Another option is to invigorate an alternative institution such as the Church so as to act as a check upon a large state’s monopoly of authority. However, this too is decentralisation, albeit in another form. In fact, ideally, it should go hand-in-hand with territorial decentralisation.

[6] In a world in which states still exist, it is also the case, as Wolf points out, that people are more likely to tolerate a practice they disapprove of if it is funded privately; they will be much less accommodating when they know that their own tax dollars are contributing to the outrage.

[7] Indeed, strictly speaking, there is no such thing as a libertarian “theory” of abortion any more than there is a libertarian theory of football or of bread baking. Rather, there is only the application of our theory – i.e. our understanding of rights – to a particular kind of act.