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)
