Conscience of a Conservative Read online

  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 reserved to the states.

  C H A P T E R F O U R

  And Civil Rights

  AN ATTEMPT has been made in

  recent years to disparage the principle of States' 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. Still, it is quite true that the integration issue is affected by the States' Rights principle, and that the South's position on the issue is, today, the most conspicuous expression of the principle. So much so that 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 be 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.

  In the field of racial relations, there are some rights that are clearly protected by valid laws and are therefore "civil" rights. One of them is the right to vote. The Fifteenth Amendment provides that no one shall be denied the franchise on account of race, color or previous condition of servitude. Similarly with certain legal privileges enforced by the Fourteenth Amendment. The legislative history of that amendment makes it clear (I quote from the Civil Rights Act of 1866 which the Amendment was designed to legitimize) that people of all races shall be equally entitled "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, to purchase, lease, sell, hold and convey real and personal property and to full and equal benefit of all laws and proceedings for the security of persons and property." After the passage of that Act and the Amendment, all persons, Negroes included, had a "civil" right to these protections.

  It is otherwise let us note, with education. For 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 just or 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 the federal government. Consequently, under the Tenth Amendment, jurisdiction over the entire field was reserved to the States. The remaining question is whether the Fourteenth Amendment—concretely, that amendment's "equal protection" clause—modified the original prohibition against federal intervention.

  To my knowledge it has never been seriously argued—the argument certainly was not made by the Supreme Court—that the authors of the Fourteenth Amendment intended to alter the Constitutional scheme with regard to education. Indeed, in the famous school integration decision, Brown v. Board of Education (1954), the Supreme Court justices expressly acknowledged that they were not being guided by the intentions of the amendment's authors. "In approaching this problem," Chief Justice Warren said, "we cannot turn the clock back to 1868 when the amendment was adopted... We must consider public education in the light of its full development and in its present place in American life throughout the nation." In effect, the Court said that what matters is not the ideas of the men who wrote the Constitution, but the Court's ideas. It was only by engrafting its own views onto the established law of the land that the Court was able to reach the decision it did.

  The intentions of the Fourteenth Amendment's authors are perfectly clear. Consider these facts. 1. During the entire congressional debate on the Fourteenth Amendment it was never once suggested by any proponent of the amendment that it would outlaw segregated schools. 2. At the same time that it approved the Fourteenth Amendment, Congress established schools in Washington in Georgetown "for the sole use of... colored children." 3. In all the debates on the amendment by the State Legislatures there was only one legislator, a man in Indiana, who thought the amendment would affect schools 4. The great majority of the States that approved the amendment permitted or required segregated schools at the very time they approved the amendment. There is not room here for exhaustive treatment of this evidence, but the facts are well documented, and they are all we have to know about the Fourteenth Amendment's bearing on this problem. The amendment was not intended to, and therefore it did not outlaw racially separate schools. It was not intended to, and therefore it did not, authorize any federal intervention in the field of education.

  I am therefore not impressed by the claim that the Supreme Court's decision on school integration is the law of the land. The Constitution, and the laws "made in pursuance thereof," are the "supreme law of the land." The Constitution is what its authors intended it to be and said it was—not what the Supreme Court says it is. If we condone the practice of substituting our own intentions for those of the Constitution's framers, we reject, in effect, the principle of Constitutional Government: we endorse a rule of men, not of laws.

  I have great respect for the Supreme Court as an institution, but I cannot believe that I display that respect by submitting abjectly to abuses of power by the Court, and by condoning its unconstitutional trespass into the legislative sphere of government. The Congress and the States, equally with the Supreme Court, are obliged to interpret and comply with the Constitution according to their own lights. I therefore support all efforts by the States, excluding violence of course, to preserve their rightful powers over education.

  As for the Congress, I would hope that the national legislature would help clarify the problem by proposing to the States a Constitutional amendment that would reaffirm the States' exclusive jurisdiction in the field of education. This amendment would, in my
judgment, assert what is already provided unmistakably by the Constitution; but it would put the matter beyond any further question.

  It so happens that I am in agreement with the objectives of the Supreme Court as stated in the Brown decision. I believe that it is both wise and just for negro children to attend the same schools as whites, and that to deny them this opportunity carries with it strong implications of inferiority. I am not prepared, however, to impose that judgment of mine on the people of Mississippi or South Carolina, or to tell them what methods should be adopted and what pace should be kept in striving toward that goal. That is their business, not mine. I believe that the problem of race relations, like all social and cultural problems, is best handled by the people directly concerned. Social and cultural change, however desirable, should not be effected by the engines of national power. Let us, through persuasion and education, seek to improve institutions we deem defective. But let us, in doing so, respect the orderly processes of the law. Any other course enthrones tyrants and dooms freedom.

  C H A P T E R F I V E

  Freedom For The Farmer

  "... supervision of agriculture and other concerns of a similar nature... which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as they were nugatory." Alexander Hamilton in the Federalist Papers, No. 17.

  HAMILTON WAS WRONG in his

  prediction as to what men would do, but quite right in foreseeing the consequences of their foolhardiness. Federal intervention in agriculture has, indeed, proved "troublesome." Disregard of the Constitution in this field has brought about the inevitable loss of personal freedom; and it has created economic chaos. Unmanageable surpluses, an immense tax burden, high consumer prices, vexatious controls—I doubt if the folly of ignoring the principle of limited government has ever been more convincingly demonstrated.

  We have blundered on so grand a scale that even our critical faculties seem to have been damaged in the process. No man who is familiar with the subject will deny that the policy of price supports and production controls has been a colossal failure. Yet, today, some of our best minds have no better solution to the problem than to raise the supports and increase the controls!

  The teaching of the Constitution on this matter is perfectly clear. No power over agriculture was given to any branch of the national government. The sponsors of the first Agriculture Adjustment Act, passed in 1933, tried to justify the law under the so-called general welfare clause of the Constitution. The Supreme Court promptly struck down that legislation on the grounds that the phrase, "general welfare," was simply a qualification of the taxing power and did not give Congress the power to control anything. "The regulation (of agricultural production)," the Court said in United States v. Butler (1936) "is not in fact voluntary. The farmer, of course, may refuse to comply [a privilege not given him under present legislation], but the price of such refusal is loss of benefits... the power to confer or withhold unlimited benefits is the power to coerce or destroy..."

  The New Deal Congress replied by enacting substantially identical legislation, the second AAA, and now sought to justify the program as a "regulation of interstate commerce." This was a transparent evasion of the Butler case; but the Supreme Court, which by this time was under heavy political fire for having thwarted the "Roosevelt Revolution," made one of its celebrated about-faces and upheld the new act. The federal government has usurped many powers under the guise of "regulating commerce," but this instance of distorting the plain meaning of the Constitution's language is perhaps the most flagrant on record.

  In the case that upheld the second AAA, Wickard v. Filburn, (1942), a farmer had been fined for planting 23 acres of wheat, instead of the eleven acres the government had allotted him—notwithstanding that the "excess" wheat had been consumed on his own farm. Now how in the world, the farmer wanted to know, can it be said that the wheat I feed my own stock is in interstate commerce? That's easy, the Court said. If you had not used your own wheat for feed, you might have bought feed from someone else, and that purchase might have affected the price of wheat that was transported in interstate commerce! By this bizarre reasoning the Court made the commerce clause as wide as the world and nullified the Constitution's clear reservation to the States of jurisdiction over agriculture.

  The tragedy, of course, is that the federal government's unconstitutional intrusion into Agriculture has not brought us any closer to a solution of the "farm problem." The problem, when federal intervention began, was declining farm incomes. Today, many farm incomes are still low. But now we have additional problems—production controls that restrict freedom, high consumer prices, huge crop surpluses and a gigantic tax bill that is running close to six billion dollars a year. No matter what variant of the price support-production control approach we adopt, the solution to these problems continues to elude us.

  The reason government intervention has created more problems than it has solved is quite simple. Farm production, like any other production is best controlled by the natural operation of the free market. If the nation's farmers are permitted to sell their produce freely, at price consumers are willing to pay, they will, under the law of supply and demand, end up producing roughly what can be consumed in national and world markets. And if farmers, in general, find they are not getting high enough prices for their produce, some of them will move into other kinds of economic activity. The result will be reduced agricultural production and higher incomes for those who remain on the farms. If, however, the government interferes with this natural economic process, and pegs prices higher than the consumer is willing to pay, the result will be, in Hamilton's phrase, "troublesome." The nation will pay exorbitant prices for work that is not needed and for produce that cannot be consumed.

  In recent years, the government has sought to alleviate the problem of over-production by the soil bank and acreage retirement programs. Actually, these programs are simply a modern version of the hog-killing and potato-burning schemes promoted by Henry Wallace during the New Deal. And they have been no more successful in reducing surpluses than their predecessors. But there is also a positive evil in these programs: in effect, they reward people for not producing. For a nation that is expressing great concern over its "economic growth," I cannot conceive of a more absurd and self-defeating policy than one which subsidizes non-production.

  The problem of surpluses will not be solved until we recognize that technological progress and other factors have made it possible for the needs of America, and those of accessible world markets, to be satisfied by a far fewer number of farmers than now till the soil. I cannot believe that any serious student of the farm problems fails to appreciate this fact. What has been lacking is not an understanding of a problem that is really quite impossible not to understand, but the political courage to do something about it.

  Doing something about it means—and there can be no equivocation here—prompt and final termination of the farm subsidy program. The only way to persuade farmers to enter other fields of endeavor is to stop paying inefficient farmers for produce that cannot be sold at free market prices. Is this a cruel solution? Is it heartless to permit the natural laws of economics to determine how many farmers there shall be in the same way that those laws determine how many bankers, or druggists, or watchmakers there shall be? It was never considered so before the subsidy program began. Let us remember that the movement from the farm to other fields of endeavor has been proceeding in this country since its beginning—and with good effects, not ill.

  I cannot believe that this course will lose politicians as many votes as some of them seem to fear. Most farmers want to stand on their own feet. They are prepared to take their chances in the free market. They have a more intimate knowledge than most of us of the consequences of unlimited governme
nt power, and so, it would seem, a greater interest than most in returning agriculture to freedom and economic sanity.

  C H A P T E R S I X

  Freedom For Labor

  IF I had to select the vote

  I regard as the most important of my Senate career it would be the one I cast on the Kennedy-Ervin "Labor Reform" Bill of 1959. The Senate passed the measure 90-1; the dissenting vote was mine. The measure had been advertised as a cure-all for the evils uncovered by the McClellan Committee investigation. I opposed it because I felt certain that legislation which pretended to respond to the popular demand for safeguards against union power, but actually did not do so, would preclude the possibility of meaningful legislation for some time to come.

  That opinion was vindicated later on. The House of Representatives rejected Kennedy-Ervin, and substituted in its place a much better measure, the Landrum-Griffin bill. The ensuing conference between representatives of the two houses made only minor changes in the House version; I would guess that 90% of the original Landrum-Griffin bill survived in the conferees' report. The Senate adopted the report with only two dissenting votes—proof to me that my initial protest had been wise.