States’ Rights and Civil Rights

 

Regarding the 1954 Brown vs. BOE decision by the activist Supreme Court, Barry Goldwater saw the Court guided not by the ideas of the men who wrote the Constitution, “but engrafted its own views onto the established law of the land.”  By legislating from the bench, they usurped the power of the Legislative branch and should have been impeached.

Bernhard Thuersam

States’ Rights and Civil Rights

“An attempt has been made in recent years to disparage the principle of State’ 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.

{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 by 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.

[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 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 to the federal government.”

(The Conscience of a Conservative, Barry Goldwater, Victor Publishing Company, 1960, pp. 31-34)