Now the point is not that Congress failed to act on these recommendations, or that the Administration gave them only halfhearted 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.
IV
And 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 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
