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
