jTKureflay; March 12, 1964
THE D AILYTAB HEEE
Page 3-
days Philosophy Of
.rear
(Ed. Note: Henry Steele Com
mager is professor of History
and American Studies at Am
herst College.)
By HENRY S. COMMAGER
New York Times Magazine
Not for more than a century
has the doctrine of states' rights
been so defiantly proclaimed as
now; not since Appomattox has
it found such widespread sup
port. We can dismiss as irrelevant
the demagoguery of a Governor
Wallace or a Governor Barnett.
But we cannot dismiss so easily
the formal endorsement by as
many as a dozen states of con
stitutional amendments which
embody a states' rights philoso-'
phy and assert "no confidence"
in the Constitution and the Gov
ernment of the United States.
Revolutionary as these proposed
amendments are, they have re
ceived curiously little public at
tention. Indeed, it is safe to say
that the average American is
wholly unaware of them or of
the changes they would bring
about in the American constitu
tional system.
The first of these proposed
amendments is a clumsy effort
to repeal the Supreme Court
decision, in Baker vs. Carr, that
Federal courts may take a
hand in reapportioning seats in
state legislatures; it would deny
them any jurisdiction in this
area. The second, and most per
nicious, would allow state leg
islatures to bypass the Congress
entirely in the amendment pro
cess by permitting amendments
to the Federal Constitution solely
through state action. The third
would create a super Supreme
Court to be composed of the
chief justices of the fifty states,
with power to overrule decisions
of the United States Supreme
Court in all cases involving
state-Federal relations. So far,
the first of these amendments
has been approved by 12 states,
the second by 11, the third by
four.
There is perhaps little likelihood
that these gestures toward con
stitutional anarchy will com
mand the support of three
fourths of the states, or that
they will be endorsed by the
Congress. Yet we should not for
get that the Bricker amendment
designed to paralyze Presi
dential conduct of foreign rela
tions failed of passage in the ,
Senate by but one . vote, and that -,
the 22nd Amendment limiting ,
Presidents to two terms an
amendment which President
Eisenhower himself called an
example of retroactive vindic
tiveness slipped through the
Congress and the state legis
latures almost without notice.
What we are witnessing in
these amendments and in the
defiance of the Supreme Court
by state governors, in the as
sault on the constitutional pow
ers of the President to conduct
foreign affairs, in the ground
swell of revolt against what is
vaguely called "Federal centra
lization" is not merely a re
crudescence of states' rights. It is
an expression of something deep
er of a philosophy of anti-government
and of no-government.
Whereas the Constitution was
designed "to form a more per
fect Union," this is an effort
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to form a much less perfect
Union. It is a philosophy, in fact
if not in concept, of constitu
tional anarchy.
For one thing which is clear
is that the proponents of these
amendments are not . genuinely
concerned with the powers of
the states. They are concerned
with non-powers in the nation.
They do not want , to see state
governments invigorated, carry
ing through broad legislative
programs; they want to see the
national Government frustrated,
incompetent to carry through
legislative programs. The ambi
tion which animates them is not
to strengthen the states, but
to paralyze the nation.
Does anyone for a moment
suppose that if the apportionment
amendment should by some
quirk become law, the states
would then proceed to reappor
tion legislative seats on a fair
basis? They have had 50 years
in which to deal with the pro
blem and have failed to do so;
some states have actually de
fied their own constitutional
mandates requiring decennial re
apportionment. Does anyone really suppose
that if the amendment permit
ting the states to bypass the
Congress in the amending pro
cess became law, the states
would proceed to set their do
mestic houses in order to end
the scandal of racial discrimi
nation themselves, to reform
antiquated tax structures, to
deal vigorously with the pro
blems of conservation and of
public lands, to take care of the
needs of public education and
public health through a series
of constitutional amendments?
Clearly, the new authority would
be used not to carry through pro
grams of public welfare but to
repeal existing programs of pub
lic welfare.
Does anyone for a moment
suppose that if the fantastic pro
posal for a super Supreme Court
were to materialize, that court
would rule impartially between
the claims of state and nation?
That amendment would enable
26 chief justices representing
(and representing unfairly)
states with one-sixth the pop
ulation of the United States, to
rewrite constitutional law. In all
likelihood, such a court would
strip the Supreme Court of that
crucial function of harmonizing
the Federal system which is
quintessential to the survival of
the nation. As Justice Holmes
said1 half a century ago: "I do
not think the United States would
come to an end if we lost our
power to declare an act of Con
gress void. I do think the Union
would be imperiled if we could
not make the declaration as to
the laws of the several states.
For one in my place sees how
often a local policy prevails with
those who are not trained to
national views."
Make no mistake about it.
These amendments, and the
forces behind them, are inspired
by deep-seated hostility to the
national government. They are
designed to weaken the whole
constitutional structure not
only the postive power of gov
ernment under the Constitution,
but rights guaranteed to per
sons under the Constitution.
They look ultimately to paraly
zing the effective operation of
the operation of the Constitution,
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which means, of course, paraly
zing the nation itself.
There is nothing new about
this. Thomas Jefferson invoked
the principle of states rights
on behalf of freedom, but he
was almost the last statesman
who did so. For well over a
century now, this pernicious
doctrine . has been invoked for
two major purposes, and almost
exclusively for those purposes:
to weaken government and to
endanger freedom.
The most notorious, and his
torically the most decisive, use
of the doctrine of states' rights
was, of course, to protect the in
stitution of Negro slavery.
States' rights were invoked, too,
to delay expansion into the
West, to defent the regulation of
trusts and railroads, to frustrate
prohibition of child labor, to
hold up the. grant of suffrage
to women, and to oppose social
security, the conservation of
natural resources, the creation
of hydroelectric power for na
tional purposes, the encourage
ment of public education and the
protection of equality. It is
worth adding it is something
Southerners might note that
the doctrine of states rights was
used, too, to disrupt and even
tually to destroy the Confeder
acy itself. .
No political doctrine in Ameri
can history has been more con
sistently invoked on behalf of
privilege; none has had a more
egregious record of error and
calamity.
What is the explanation of
this record, and of attitude
which it reflects?
It is not, I think, to be found
in any deep passionate attach
ment to the states. There was
some of that earlier, and we are
still reminded of it on ceremonial
occasions, . But there is no per
suasive evidence that what ani
mated a John Adams, a Jeffer
son, even a Calhoun, is still a
vital force.
The modern champions of
states' rights have none of that
loyalty tq. the community which
impelled a Jefferson to build
the University of Virginia and
cherish its integrity; which per
suaded a Franklin to lavish his
rich' talents on his adopted city
of Philadelphia; which convinced
earlier generations of Bostonians
that they had built Zion upon a
hill, and later generations that
their city was the Hub of the
Solar System ("You couldn't
pry that out of a Boston man."
said Oliver Wendell Holmes,
"if you had the tire of all cre
ation straightened out for a
crowbar"). They have not even
that generous vanity which
compels Texans and Californians
to vie with each other in build
ing universities and museums
and foundations, and in preserv
ing the natural resources and
beauty of their states.
No, the states' rights cham
pion of our time displays no
real pride in his state, no sense
of its past, no feeling for its
traditions, no respect for its
dignity, no pride in its future.
What has he done, what does he
do, to preserve its natural re
sources, to cherish its insti
tutions of learning, to protect its
good name? What interest does
he show in the richest possession
of any state the welfare of its
men and women and children?
The mobs invading the univer
sity campus at Oxford, the Neg
ro children huddled behind wire
fences in Birmingham and police
dogs in the streets these are
the stigmata of states' rights to
day. What shall we say of the other
side of the shield: that fear of
nationalism, that suspicion of
the Federal Government, which
motivates not only the whole
crusade against the political ef
fectiveness of the national Gov
ernment? What an extraordinary spec
tacle it is, this fear of the Uni
ted States by its own citizens!
The generation of the Founding
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Fathers worried and bickered
over the potential hostility be
tween large states and small,
and wrote safeguards against
the exploitation of small states
into the Constitution. We can see
now that these fears were un
real and absurd. But they were
neither as unreal nor as absurd
as the fear that grips large seg
ments of our population today
the fear of the national Govern
ment itself.
What an extraordinary spec
tacle it is! One might imagine,
to hear some of our contempor
ary nihilists talk, that we were
not one people but many, not
Americans but Virginians and
Mississippians; one might sup
pose that Jefferson Davis was
right when he wrote, long after
the Civil War, that "no such
political community or corporate
unit as One people of the United
States existed, has ever been or
ganized, or yet exists, and that
no political action by the people
of the United States in the ag
gregate has ever taken place, or
ever can take place, under the
Constitution." One might sup
pose that we had not existed as
a nation for 175 years. One
might conclude that the attempt
at federal union, so hopefully in
augurated in 1787, and so widely
copied throughout the globe, had
proved a failure, and that we
were now called upon to go back
to 1787, reject the Constitution,
and cleave to the old Articles of
Confederation.
Is there any foundation for the
misgivings that animate the
champions of states' rights; is
there any justification for their
fears?
Has the national Government
proved dangerous to the liberties
of Americans, or to the rights
of the states?
Certainly it would be asking
a great deal to ask Negroes to
believe that the national Govern
ment has been the enemy of
freedom, and the states the
guardians of freedom. It would
be asking a great deal to ask
labo rto subscribe to the doctrine
that it should look to the states,
not to the nation, for the pre
servation of its rights.
Opponents of national "cen
tralization" never cease to de
plore the invasion of the "rights"
of private citizens by the nation
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al Government, and Governor
Wallace played variations on
that weary theme in his pro
clamation. It is fair to ask:
What riits have they lost?
Freedom of religion, of speech,
of press, of assembly, of petition,
or association? Due process of
law, the right to a jury, immu
nity from unreasonable search
and seizure, from cruel and un
usual punishment, from self
imaimination? Ta ask these questions is to
answer them. As far as the Fed
eral Government is concerned
(and it is very much concerned)
these rights are still unimpaired
or impaired only where consid
erations of national security
have appeared to require qualifi
cation. For the past thirty years
or so the Federal courts have
engaged not in restricting but
in enlarging the scope and mean
ing of these rights. The same,
cannot be said for the states.
Who can deny that in the over
whelming majority of instances
impairment of the rights and
liberties of men has come from
the states and in large mea
sure from precisely those states
whose spokesmen are the most
vigorous proponents of , states'
rights. If ever it can be said
that advocates do not come into
court with clean hands, it can
be said of those who today la
ment the "destruction" of lib
erties of the states by the na
tional Government.
Who, knowing our history, can
doubt for a moment that the
real source of danger to the
freedoms of Americans has been
the states themselves? There
are seme exceptions, to be sure
the episode of the Alien and
Sedition Acts of 1798, for ex
ample, the respressive legisla
tion of the First World War, the
manifestations of McCarthyism
in the fifties.
But anyone familiar with the
history of freedom in the United
States knows that it is the states
that interfere most frequently
with academic freedom, the
states that set up censorship of
press and stage and films, the
states that threaten freedom of
association, the states whose
unAmerican activities commit
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tees have chalked up the most
shameful records, the .states that
have most frequently flouted the
due process of law and denied
equal protection of the laws, and
challenged or denied religious
freedom. The vast majority of
civil-liberties cases in the Su
preme Court come up from the
states, and involve local ordin
ances or state laws.
Do those who now invoke
states' rights do so because they
want higher standards of free
dom, or because they fear the
Supreme Court is too active on
behalf of freedom?
Has the national Government
threatened those institutions on
whose prosperity our society de
pends for its social and moral
health? Has it threatened the in
dependence of the church? The
Federal Government started off
with complete separaTion"" oF
church and state; it was in the
states that discrimination on the
basis of religion lingered on.
When Madison proposed that the
prohibitions of the First Amend
ment be applied to the states,
his proposal was defeated.
Has the national Government
threatened the integrity of arts
and letters and science? On the
contrary. Since the early years
of the 19th century, the nation
al Government has maintained
such institutions as the Library
of Congress, the United States
Geological Survey, the National
Observatory, the Smithsonion In
stitution and, more recently, the
National Archives and the Na
tional Gallery of Art. Have these
institutions been free? Certain
ly they have been more free
than many state universities.
Congress has never interfered
with the Library of Congress,
for example, as the legislatures
of Ohio and Colorado are . even
now interfering with their state
universities.
It is precisely because the na
tional Government is so gen
erous to arts and sciences that
the proponents of states' rights
fear it, for they do not really
believe in freedom, nor in those
institutions that preserve and
prosper freedom: universities,
libraries, scientific institutes. All
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You learn on the job, side by side with
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The research behind Thompson adver
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of these foster the open mind and
the cosmopolitan spirit. How
alien these are to the philoso
phy of states rights can be ob
served in the South of 1860 or
of 1960.
Has the national Government
threatened the general welfare,
or failed to promote it? On the
contrary. That whole body of
welfare legislation whose woof
is interwoven with the warp of
' private enterprise to make the
fabric of our life today finds its
authority and support largely in
the national Government: Social
Security, public health, conser
vation and, now, education and
civil rights.
It is precisely because the
Federal Government does pro
mote the general welfare that
proponents of states' rights fear
it. They proclaim that these en
terprises should not be perform
ed by the national Government,
but by the states. But they are
not truly concerned with the gen
eral welfare, but only with that
of members of their own faction.
And they have failed egregiously
to promote the welfare of even
these to provide schools and
housing, for example. All too
often, the states have wasted
their resources of water and
forest and soil, or handed them
over to predatory private in
terests. Ever since the days of
Theodore Roosevelt it has been
the United States which has step
ped in to protect these resources.
Has the national Government
failed to form a more perfect
union, to provide for the general
defense, to insure domestic
tranquillity? Quite the con
trary. There has never been a
serious threat to the union from
the national Government, or to
the domestic tranquility. There
has never been ana dventurer, a
soldier or fortune, a dictator, or
a tyrant in the executive chair.
The only threats to the Union
have come from the states.
States' rights imperiled the
Union in 1803 when New England
states flirted at secession be
cause Congress had bought
Louisiana. States' rights threat
ened the disruption of the Union
during the War of 1812, when
states refuse to permit their
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militias to serve outside state
territories. States rights threat
ened the integrity of the Union
in the eighteen-twenties when
Georgia nullified Federal treat
ies and Supreme Court decisions
protecting the Cherokee Indians,
and in the eigh teen-thirties when
South Carolina nullified tariff
laws and enforcement laws.
States' rights actually broke up
the union in 1861, and precipitat
ed the most tragic war in which
the American people have ever
been engaged. We cannot say
that the doctrine of states'
rights threatens the Union to
day, but clearly it disturbs do
mestic tranquillity by defying
the consitutional mandate of
equality and justice.
And what of the states? Have
they, in fact, lost any of the
rights or powers they originally
possessed? They have lost the
"right" to secede. That, at least,
was settled by Appomattox.
They have lost the "right" to
deprive persons of life, liberty
or property without due process
of law, or deny the equal pro
tection of the laws; they have
lost the "right" to deprive any
person of suffrage on account of
race or color. These "rights"
they did indeed forfeit, and it
was Appomattox which settled
them all.
It would be a mistake to im
ply that the current revival of
states' rights has been entirely
insincere or misguided. Bigness
is dangerous; the welfare state
can dry up initiative; power
does tend to corrupt, and there
is much to be said for fragmen
tation of political authority; eter
nal vigilance is the price of
liberty.
But a states rights philosophy
that has its origin in fear of gov
ernment itself, and is rooted in
a deep distrust of majority rule
and of the democratic process
es, forfeits its claim to respect.
A states' rights philosophy which
is never inspired by generosity,
never excited by a passion for
freedom or for justice, never ex
alted by magnanimity, but takes
refuge in narrowness and self
ishness and vindictiveness, ex
hausts its claim to tolerance.