An attempt has been made in recent years to disparage the principle of
States’ Rights by equating it with defense of the South’s position on
racial integration. I have already indicated that the reach of States’
Rights is much broader than that--that it affects Northerners as well
as Southerners, and concerns many matters that have nothing to do with
the race question. Still, it is quite true that the integration issue
is affected by the States’ Rights principle, and that the South’s
position on the issue is, today, the most conspicuous expression of
the principle. So much so that the country is now in the grips of a
spirited and sometimes ugly controversy over an imagined conflict
between States’ Rights, on the one hand, and what are called “civil
rights” on the other.
I say an imagined conflict because I deny that there _can_ be a
conflict between States’ Rights, properly defined--and civil rights,
properly defined. If States’ “Rights” are so asserted as to encroach
upon individual rights that are protected by valid federal laws, then
the exercise of state power is a nullity. Conversely, if individual
“rights” are so asserted as to infringe upon valid state power, then
the assertion of those “rights” is a nullity. The rights themselves
do not clash. The conflict arises from a failure to define the two
categories of rights correctly, and to assert them lawfully.
States’ Rights are easy enough to define. The Tenth Amendment does
it succinctly: “The powers not delegated to the United States by the
Constitution nor prohibited by it to the States are reserved to the
States respectively, or to the people.”
Civil rights should be no harder. In fact, however--thanks to
extravagant and shameless misuse by people who ought to know better--it
is one of the most badly understood concepts in modern political
usage. Civil rights is frequently used synonymously with “human
rights”--or with “natural rights.” As often as not, it is simply a
name for describing an activity that someone deems politically or
socially desirable. A sociologist writes a paper proposing to abolish
some inequity, or a politician makes a speech about it--and, behold,
a new “civil right” is born! The Supreme Court has displayed the same
creative powers.
A _civil_ right is a right that is asserted and is therefore protected
by some valid law. It may be asserted by the common law, or by local
or federal statutes, or by the Constitution; _but unless a right
is incorporated in the law, it is not a civil right and is not
enforceable by the instruments of the civil law_. There may be some
rights--“natural,” “human,” or otherwise--that _should_ also be civil
rights. But if we desire to give such rights the protection of the law,
our recourse is to a legislature or to the amendment procedures of the
Constitution. We must not look to politicians, or sociologists--or the
courts--to correct the deficiency.
In the field of racial relations, there are some rights that are
clearly protected by valid laws and are therefore “civil” rights. One
of them is the right to vote. The Fifteenth Amendment provides that no
one shall be denied the franchise on account of race, color or previous
condition of servitude. Similarly with certain legal privileges
enforced by the Fourteenth Amendment. The legislative history of that
amendment makes it clear (I quote from the Civil Rights Act of 1866
which the Amendment was designed to legitimize) that people of all
races shall be equally entitled “to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, to purchase, lease,
sell, hold and convey real and personal property and to full and
equal benefit of all laws and proceedings for the security of persons
and property.” After the passage of that Act and the Amendment, all
persons, Negroes included, had a “civil” right to these protections.
It is otherwise, let us note, with education. For the federal
Constitution does _not_ require the States to maintain racially mixed
schools. Despite the recent holding of the Supreme Court, I am firmly
convinced--not only that integrated schools are not required--but
that the Constitution does not permit any interference whatsoever by
the federal government in the field of education. It may be just or
wise or expedient for negro children to attend the same schools as
white children, but they do not have a civil right to do so which is
protected by the federal constitution, or which is enforceable by the
federal government.
The intentions of the founding fathers in this matter are beyond
any doubt: _no powers regarding education were given the federal
government_. Consequently, under the Tenth Amendment, jurisdiction over
the entire field was reserved to the States. The remaining question is
whether the Fourteenth Amendment--concretely, that amendment’s “equal
protection” clause--modified the original prohibition against federal
intervention.
To my knowledge it has never been seriously argued--the argument
certainly was not made by the Supreme Court--that the authors of the
Fourteenth Amendment intended to alter the Constitutional scheme
with regard to education. Indeed, in the famous school integration
decision, _Brown v. Board of Education_ (1954), the Supreme Court
justices expressly acknowledged that they were not being guided by the
intentions of the amendment’s authors. “_In approaching this problem_,”
Chief Justice Warren said “_we cannot turn the clock back to 1868 when
the amendment was adopted.... We must consider public education in the
light of its full development and in its present place in American life
throughout the nation._” In effect, the Court said that what matters is
not the ideas of the men who wrote the Constitution, but the _Court’s_
ideas. It was only by engrafting its own views onto the established law
of the land that the Court was able to reach the decision it did.
The intentions of the Fourteenth Amendment’s authors are perfectly
clear. Consider these facts. 1. During the entire congressional
debate on the Fourteenth Amendment it was never once suggested by any
proponent of the amendment that it would outlaw segregated schools. 2.
At the same time that it approved the Fourteenth Amendment, Congress
established schools in Washington in Georgetown “for the sole use of
... colored children.” 3. In all the debates on the amendment by the
State Legislatures there was only one legislator, a man in Indiana, who
thought the amendment would affect schools. 4. The great majority of
the States that approved the amendment permitted or required segregated
schools at the very time they approved the amendment. There is not
room here for exhaustive treatment of this evidence, but the facts are
well documented, and they are all we have to know about the Fourteenth
Amendment’s bearing on this problem. The amendment was not intended
to, and therefore it did not outlaw racially separate schools. It was
not intended to, and therefore it did not, authorize _any_ federal
intervention in the field of education.
I am therefore not impressed by the claim that the Supreme Court’s
decision on school integration is the law of the land. _The
Constitution, and the laws “made in pursuance thereof,” are the
“supreme law of the land”_. The Constitution is what its authors
intended it to be and said it was--not what the Supreme Court says
it is. If we condone the practice of substituting our own intentions
for those of the Constitution’s framers, we reject, in effect, the
principle of Constitutional Government: we endorse a rule of men, not
of laws.
I have great respect for the Supreme Court as an institution, but I
cannot believe that I display that respect by submitting abjectly to
abuses of power by the Court, and by condoning its unconstitutional
trespass into the legislative sphere of government. The Congress and
the States, equally with the Supreme Court, are obliged to interpret
and comply with the Constitution according to their own lights. I
therefore support all efforts by the States, excluding violence of
course, to preserve their rightful powers over education.
As for the Congress, I would hope that the national legislature would
help clarify the problem by proposing to the States a Constitutional
amendment that would reaffirm the States’ exclusive jurisdiction in the
field of education. This amendment would, in my judgment, assert what
is already provided unmistakably by the Constitution; but it would put
the matter beyond any further question.
It so happens that I am in agreement with the _objectives_ of the
Supreme Court as stated in the _Brown_ decision. I believe that it is
both wise and just for negro children to attend the same schools as
whites, and that to deny them this opportunity carries with it strong
implications of inferiority. I am not prepared, however, to impose
that judgment of mine on the people of Mississippi or South Carolina,
or to tell them what methods should be adopted and what pace should be
kept in striving toward that goal. That is their business, not mine.
I believe that the problem of race relations, like all social and
cultural problems, is best handled by the people directly concerned.
Social and cultural change, however desirable, should not be effected
by the engines of national power. Let us, through persuasion and
education, seek to improve institutions we deem defective. But let us,
in doing so, respect the orderly processes of the law. Any other course
enthrones tyrants and dooms freedom.