Circa1865

Zebulon Vance, governor of NC, stood up for civil rights in 1862 when he learned that forty North Carolina citizens had been taken from their homes and put into a military prison on suspicion of disloyalty. He wrote to President Jefferson Davis:

“As Governor, it is my duty to see that the citizens of this State are protected in whatever rights pertain to them, and, if necessary, I will call out the State Militia to protect them and uphold the principles of Anglo-Saxon liberty – trial by jury; liberty of speech; freedom of the press; the privileges of Parliament habeas corpus; the right to petition and bear arms; subordination of the military to civil authority; prohibition of ex post facto laws.”

Sam J. Ervin, Jr., . . . stood up for the rule of law and Bill of Rights in his dealings with President Richard M. Nixon and his aides in 1973-74. In a speech to the student body of the University of North Carolina at Chapel Hill in 1973, Ervin said: “So long as I have a mind to think, a tongue to speak, and a heart to love my country, I shall deny that the Constitution confers any arbitrary power on any President, or empowers any President to convert George Washington’s America into Caesar’s Rome.”

(Seeking Liberty and Justice, A History of the NC Bar Association, 1899-1999, J. Edwin Hendricks, NC Bar Association, excerpt pg. 115)

“The Governor of New York, in 1930, pointed out that the Constitution does not empower the Congress to deal with “a great number of . . . vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare, and a dozen other important features.” And he added that “Washington must not be encouraged to interfere” in those areas.

Franklin Roosevelt’s rapid conversion from Constitutionalism to the doctrine of unlimited government is an oft-told story. But I am here concerned not so much by the abandonment of States’ Rights by the national Democratic Party – an event that occurred some years ago when the party was captured by the Socialist ideologues in and about the labor movement – as by the unmistakable tendency of the Republican Party to adopt the same course.

The result is that today neither of our two parties maintains a meaningful commitment to the principle of States’ Rights. Thus, the cornerstone of the Republic, our chief bulwark against the encroachment of individual freedom by Big Government, is fast disappearing under the piling sands of absolutism. The Republican Party, to be sure, gives lip service to States’ Rights.

We often talk about “returning to the States their rightful powers”; the Administration has even gone so far as to sponsor a federal-state conference on the problem. But deeds are what count, and I regret to say that in actual practice, the Republican Party, like the Democratic Party, summons the coercive power of the federal government whenever national leaders conclude that the States are not performing satisfactorily.

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. Mr. Larson devotes a good deal of space to the question of States’ Rights, thanks to the Tenth Amendment . . . and Mr. Larson [suggests] 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 concluded, 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. State’ 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 States’ 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 the line has been a crushing blow to the principle of limited government.

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 publicity-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 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 also 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 reserves to the States.”

(The Conscience of a Conservative, Barry Goldwater, Victor Publishing Company, 1960, excerpts pp. 24-30)

“Congress is starting to strike back at the Supreme Court. A score of bills have been introduced to curb the Court’s power and to sidestep the effects of controversial decisions. The House Judiciary Committee, “as a matter of the highest urgency,” has appointed a special subcommittee to look into this year’s decisions.

The group is to investigate particularly the decisions that limited the power of congressional investigating committees; that weakened the laws against subversives, and that made enforcement of criminal laws more difficult.

A special subcommittee in the House is expected to come up with proposals to strike down or at least weaken the effect of three other [Court] decisions [including one holding] that communists were free to preach their subversive doctrine so long as they didn’t openly advocate action to apply it.

It is clear that a growing number of Congressmen are convinced that new laws must be passed to overcome the effects [of recent Court decisions]. Other Congressmen propose to go much further and trim the powers of the Court itself.

Senator Herman Talmadge (Dem.) of Georgia, for example, proposes to amend the code of laws to remove public schools from the jurisdiction of federal courts. Others have offered amendments to the Constitution giving States the exclusive power to regulate schools and all other matters relating to health and morals.

Behind all of the proposals affecting appointment of Justices is the objection in Congress that recent decisions have been more political than judicial in purpose and in effect.

Senator Talmadge also is sponsoring a bill to require the Court to give a full hearing, with oral argument, on any case that it decides. His contention is that the Court acted in at least 10 cases during the recent term without hearing arguments.

All of these bills, in effect, are telling the Court that it is asserting too much power over Congress, the President, and the States.”

(What Congress is Doing to Curb the Supreme Court, US News & World Report, July 12, 1957, pg. 50)

In late 1948, New York City School Superintendent William Jansen authorized investigations of teachers suspected of radical communist leanings, among them Abraham Lederman who served as president of the city’s radical, activist Teachers’ Union.

Lederman and his union criticized Jansen and the Board of Education on many issues, including alleged racism in textbooks, and especially an article by Superintendent Jansen which asserted that “the native people of Africa, who belong to the Negro race, are very backward.” The Teachers’ Union published materials on African American history and the struggle for school integration.

Policemen in School Corridors?

US News and World Report, December 5, 1957, pg. 94.

“Juvenile crime in New York public schools now becomes so serious that a grand jury wants to put police inside each school. “Blackboard jungles,” mostly in Negro and Puerto Rican areas, give most difficulty. Crime complaints exceed 2,100 this year. Must schools be policed? A top official says: “We do not want a Little Rock in New York City.” Yet trouble is mounting.

New York City —  Serious trouble in the public schools of the nation’s largest city broke into the open last week, with a recommendation for drastic action. Delinquency of all kinds has been growing, with 1,280 arrests made on New York school grounds thus far during the year. These had been for offenses ranging from petty thievery to rape and murder.

A special grand jury, investigating lawlessness in Brooklyn’s public schools, came up on November 25 with this terse recommendation: “Be it resolved that the grand jury proposes an interim recommendation, based on testimony heard from witnesses to date.

The grand jury recommends that a uniformed New York City policeman be assigned to all schools throughout the city to patrol the corridors, the stairways and the recreation yards as a preventive measure.”

Reaction to this proposal to keep police inside of New York schools was swift. New York’s Superintendent of Schools, William Jansen, called it “unthinkable.” He added, “We do not want a Little Rock in New York City.” “When the schools need police help, they get it promptly and efficiently,” Dr. Jensen said.

Nevertheless, there was agreement that the situation in the city’s public schools was serious and close to being out of hand. Discussions between police and school officials on the problem of providing adequate police protection to the public schools has been underway for some time.

The judge who presided over the grand jury’s investigation [said that] “grand jury has evidence before it to establish that conditions are alarming and that the school authorities have been utterly incapable of coping with the situation.”

Most of these “difficult” schools, as listed by the city’s Board of Education, are situated in predominantly Negro and Puerto Rican neighborhoods. Student “achievement levels” there are generally far below the average for the city. Discipline often is a major problem.

Teachers are reported to be frequently defied by pupils and, in some instances, to be threatened with physical harm by gang members who invade the classrooms. The facts now coming to light about New York’s school problem indicate that troubles here run deep. Serious school problems, it appears, is not confined to the South.”

(Policemen in School Corridors? US News and World Report, December 5, 1957, pg. 94)

Plato has described for us how democracy, after a time, degenerates into tyranny, and that the group most numerous and powerful is “the mass of the people . . . and possess very little. They come to the assembly to get their share of the loot: “their leaders deprive the rich of their property, give some to the masses, keeping most of it for themselves.”

James Madison held views typical of the American founders, writing that “democracies have even been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Athenian Democracy

“The place to start a description of Athenian democracy is with a definition of the term. Developments in the modern world, however, make that a difficult task, for the word has become debased and almost meaningless.

Few modern states will admit to being anything but democratic. States as different as the United States, the Soviet Union, Great Britain, China, Switzerland, Cuba, South Africa and Nigeria all assert they are democracies. That is confusing enough, but there are further complications.

Many people today would insist that to qualify as a democracy a state must offer full constitutional and political protections and opportunities to all who have legal permanent residence within its borders and desire citizenship.

But the Athenians limited the right to vote, hold office, and serve on juries to adult males who were citizens. Slaves, resident aliens, women, and male citizens under the age of twenty were denied these privileges. It is useful to remember that what has been called Jacksonian democracy in America co-existed with slavery, that women everywhere were denied the right to vote until this century, and that we continue to limit political participation to those of a specified age.

[No] contemporary Greek doubted that Athens was a democracy . . . The Athenians, on the other hand, would have been astonished at the claims of modern states to that title, even such states as the United States and Great Britain, for to them an essential feature of democracy was the direct and full sovereignty of the majority of citizens.

Government by elected representatives, checks and balances, separation of powers, appointment to important offices, unelected bureaucracies, terms for elective office of more than one year – all these would have seemed clear and deadly enemies of what reasonable people might understand as democracy.”

(Pericles of Athens and the Birth of Democracy: The Triumph of Vision in Leadership, Donald Kagan, Touchstone Books, 1991, excerpts pp. 48-49)