The Governor of New York, in 1930, pointed out that the Constitution
does not empower the Congress to deal with “a great number of ... vital
problems of government, such as the conduct of public utilities, of
banks, of insurance, of business, of agriculture, of education, of
social welfare, and a dozen other important features.” And he added
that “Washington must not be encouraged to interfere” in these areas.
Franklin Roosevelt’s rapid conversion from Constitutionalism to the
doctrine of unlimited government, is an oft-told story. But I am here
concerned not so much by the abandonment of States’ Rights by the
national Democratic Party--an event that occurred some years ago when
that party was captured by the Socialist ideologues in and about the
labor movement--as by the unmistakable tendency of the Republican Party
to adopt the same course. The result is that today _neither_ of our two
parties maintains a meaningful commitment to the principle of States’
Rights. Thus, the cornerstone of the Republic, our chief bulwark
against the encroachment of individual freedom by Big Government, is
fast disappearing under the piling sands of absolutism.
The Republican Party, to be sure, gives lip-service to States’ Rights.
We often _talk_ about “returning to the States their rightful powers”;
the Administration has even gone so far as to sponsor a federal-state
conference on the problem. But deeds are what count, and I regret
to say that in actual practice, the Republican Party, like the
Democratic Party, summons the coercive power of the federal government
whenever national leaders conclude that the States are not performing
satisfactorily.
Let us focus attention on one method of federal interference--one
that tends to be neglected in much of the public discussion of the
problem. In recent years the federal government has continued, and in
many cases has increased, federal “grants-in-aid” to the States in a
number of areas in which the Constitution recognizes the exclusive
jurisdiction of the States. These grants are called “matching funds”
and are designed to “stimulate” state spending in health, education,
welfare, conservation or any other area in which the federal government
decides there is a need for national action. If the States agree to
put up money for these purposes, the federal government undertakes to
match the appropriation according to a ratio prescribed by Congress.
Sometimes the ratio is fifty-fifty; often the federal government
contributes over half the cost.
There are two things to note about these programs. The first is
that they are _federal_ programs--they are conceived by the federal
government both as to purpose and as to extent. The second is that
the “stimulative” grants are, in effect, a mixture of blackmail and
bribery. The States are told to go along with the program “or else.”
Once the federal government has offered matching funds, it is unlikely,
as a practical matter, that a member of a State Legislature will turn
down his State’s fair share of revenue collected from all of the
States. Understandably, many legislators feel that to refuse aid would
be political suicide. This is an indirect form of coercion, but it is
effective nonetheless.
A more direct method of coercion is for the federal government to
_threaten_ to move in unless state governments take action that
Washington deems appropriate. Not so long ago, for example, the
Secretary of Labor gave the States a lecture on the wisdom of enacting
“up-to-date” unemployment compensation laws. He made no effort to
disguise the alternative: if the States failed to act, the federal
government would.
Here are some examples of the “stimulative” approach. Late in 1957
a “Joint Federal-State Action Committee” recommended that certain
matching funds programs be “returned” to the States on the scarcely
disguised grounds that the States, in the view of the Committee, had
learned to live up to their responsibilities. These are the areas
in which the States were learning to behave: “vocational education”
programs in agriculture, home economics, practical nursing, and the
fisheries trade; local sewage projects; slum clearance and urban
renewal; and enforcement of health and safety standards in connection
with the atomic energy program.
Now the point is not that Congress failed to act on these
recommendations, or that the Administration gave them only half-hearted
support; but rather that the federal government had no business
entering these fields in the first place, and thus had no business
taking upon itself the prerogative of judging the States’ performance.
The Republican Party should have said this plainly and forthrightly and
demanded the immediate withdrawal of the federal government.
We can best understand our error, I think, by examining the theory
behind it. I have already alluded to the book, _A Republican Looks
at His Party_, which is an elaborate rationalization of the “Modern
Republican” approach to current problems. (It does the job just as
well, I might add, for the Democrats’ approach.) Mr. Larson devotes
a good deal of space to the question of States’ Rights. He contends
that while there is “a general presumption” in favor of States’
Rights, thanks to the Tenth Amendment, this presumption must give
way whenever it appears to the federal authorities that the States
are not responding satisfactorily to “the needs of the people.” This
is a paraphrase of his position but not, I think, an unjust one. And
if this approach appears to be a high-handed way of dealing with an
explicit constitutional provision, Mr. Larson justifies the argument by
summoning the concept that “for every right there is a corresponding
duty.” “When we speak of States’ Rights,” he writes, “we should never
forget to add that there go with those rights the corresponding States’
responsibilities.” Therefore, he concludes, if the States fail to
do their duty, they have only themselves to blame when the federal
government intervenes.
The trouble with this argument is that it treats the Constitution of
the United States as a kind of handbook in political theory, to be
heeded or ignored depending on how it fits the plans of contemporary
federal officials. The Tenth Amendment is _not_ “a general assumption,”
but a prohibitory rule of law. The Tenth Amendment recognizes the
States’ _jurisdiction_ in certain areas. States’ Rights means that the
States have a right to act or _not to act_, as they see fit, in the
areas reserved to them. The States may have duties corresponding to
these rights, but the duties are owed to the people of the States, not
to the federal government. Therefore, the recourse lies not with the
federal government, which is not sovereign, but with the people who
are, and who have full power to take disciplinary action. If the people
are unhappy with say, their State’s disability insurance program, they
can bring pressure to bear on their state officials and, if that fails,
they can elect a new set of officials. And if, in the unhappy event
they should wish to divest themselves of this responsibility, they can
amend the Constitution. The Constitution, I repeat, draws a sharp and
clear line between federal jurisdiction and state jurisdiction. The
federal government’s failure to recognize that line has been a crushing
blow to the principle of limited government.
But again, I caution against a defensive, or apologetic, appeal to
the Constitution. There is a _reason_ for its reservation of States’
Rights. Not only does it prevent the accumulation of power in a central
government that is remote from the people and relatively immune from
popular restraints; it also recognizes the principle that essentially
local problems are best dealt with by the people most directly
concerned. Who knows better than New Yorkers how much and what kind of
publicly-financed slum clearance in New York City is needed and can be
afforded? Who knows better than Nebraskans whether that State has an
adequate nursing program? Who knows better than Arizonans the kind of
school program that is needed to educate their children? The people
of my own State--and I am confident that I speak for the majority of
them--have long since seen through the spurious suggestion that federal
aid comes “free.” They know that the money comes out of their own
pockets, and that it is returned to them minus a broker’s fee taken by
the federal bureaucracy. They know, too, that the power to decide how
that money shall be spent is withdrawn from them and exercised by some
planning board deep in the caverns of one of the federal agencies. They
understand this represents a great and perhaps irreparable loss--not
only in their wealth, but in their priceless liberty.
Nothing could so far advance the cause of freedom as for state
officials throughout the land to assert their rightful claims to lost
state power; and for the federal government to withdraw promptly and
totally from every jurisdiction which the Constitution reserved to the
states.