CHAPTER FOURAnd Civil Rights
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 therecanbe a conflict between States’ Rights, properly defined—and civil rights, properly defined. If States’ “Rights†are so asserted as to encroach upon individualrights 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.â€
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 rightsâ€â€”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.
Acivilright 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, orby 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—thatshouldalso 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 doesnotrequire the States tomaintain 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 theCourt’sideas. 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, authorizeanyfederal 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 landâ€. 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 myjudgment, 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 theobjectivesof the Supreme Court as stated in theBrowndecision. 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.