Circa1865

“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)