Has the Tenth Amendment been quietly repealed? It seems so to American governors, as reported from their Denver conference this week. They may have a particular stake in this "states' rights" amendment's guarantee that "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." But preserving the guarantee -- ensuring that it is never repealed, in effect -- is of great importance to all Americans.
Indeed, as the pervasive, homogenizing power of the national government grows , there is increasing need to maintain diversity among the states -- in ways of raising money or providing services, for example -- and thus to foster the competition that can heighten quality at all levels of government.
As a paper published by the government's Advisory Commission on Intergovernmental Relations puts it: "By stressing diversity among the states, lessons may be learned that would otherwise not be possible. By maintaining diversity, citizens may sort themselves so they live with the kind of government they want." And there seems to be an accelerating grass-roots realization that, in such a crucial problem as energy, solutions depend not only on federal policy but on decentralized decisionmaking and technology tailored to state and local requirements and resources.
Yet state officials have reason for feeling left out, even in comparison with municipal officials. President Carter and challenger Ronald Reagan did attend the US Conference of Mayors in June. But neither Carter nor Reagan, both former governors, went to last month's National Conference of State Legislatures or this week's annual meeting of the National Governors Association.
Of course, even in the last campaign Carter spoke of leapfrogging some government funding over the states directly to local governments. But Reagan is running on a platform pledging Republicans to "continue and redouble" efforts to return power to state as well as local governments. It would have been useful to hear him spell out to concerned officials how he would implement the attractive concept of having each successive level of government doing only what the lower ones cannot do for themselves.
The problem with some of the governor's positions is that they want states' rights but also federal general revenue sharing. Yet to achieve a competitive diversity among states it would be better for the responsibility of raising money to belong to those deciding how to expend it. At the same time there is merit in trying to remove some federal burdens from states, such as the immunity from property tax enjoyed by federal installations in the states. Well worth considering is a proposal by the Advisory Commission on Intergovernmental Relations that Congress authorize federal payments in lieu of real property taxes that would be owed if the federal government were subject to such taxes.
To be sure, federal legislation overriding state laws has often been brought on by what has been judged to be the unconstitutionality of state laws. If states had enforced adequate civil rights statutes, for example, the drive for national laws supporting the Constitution might not have been necessary.
With so much reference these days to President Truman's unexpected 1948 election in the light of President Carter's beleaguered situation, it is interesting to recall that states' rights was an issue that year, too. Truman called for congressional action on civil rights, and states' rights "Dixiecrats" led by Strom Thurmond split what had been the Democrats' solid South. Now Reagan and the Republicans are trying to split Carter's version of the solid South with almost the same kind of attack on federal overbearingness that Carter himself used four years ago.
But the Tenth Amendment ought to be more than a partisan matter. The extraordinary changes since states' rights received their first big jolt with the Civil War mean that the role of the federal government has had to grow sufficiently to meet national needs. But it always has to be scrutinized, as the framers of the Bill of Rights were well aware, so that it does not usurp the rights due the states and the citizens. Such scrutiny is every American's task.