The Civil Rights Act of 1964 and the Voting Rights Act of 1965 are often seen by progressives as important legal weapons with which the Supreme Court can dismantle “systemic discrimination.” To that end, these statutes grant sweeping power to the federal government to wage what progressive liberals call a “war on racial discrimination.”
The 1957 and 1960 Civil Rights Acts made the Justice Department the command post in the war on racial discrimination. Then came the historic Civil Rights Act of 1964, by far the most comprehensive civil rights law in the nation’s history. . . . The 1964 Civil Rights Act was followed a year later by another monumental statute, the Voting Rights Act, whose contested provisions, dealing with literacy devices and federal examiners, were upheld by the Supreme Court in 1966, in South Carolina v. Katzenbach, as a “valid” exercise of the federal government’s power under the Fifteenth Amendment.
According to progressives, the rationale behind vesting this power in the federal courts, through the Reconstruction amendments, was that States in the South could not be relied upon to support the civil rights revolution launched by the Republicans in 1865. The federal courts would, therefore, henceforth adjudicate civil rights and voting rights violations.
But in his book Government by Judiciary: The Transformation of the Fourteenth Amendment, Raoul Berger shows that the historical record does not support that interpretation. He argues that “the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States, which had always exercised such control, and to exclude federal intrusion.”
State sovereignty—a constitutional doctrine supported by both Northern and Southern States before discord between them arose—was defended by politicians of all ideologies. Berger quotes Abraham Lincoln’s defense of this principle, when Lincoln said that:
The right of each State to order and control its own domestic institutions according to its own judgement exclusively is essential to the balance of powers on which the perfection and endurance of our political fabric depends.
Berger also cites John A. Bingam, Republican Representative from Ohio who helped draft the “equal protection” clause, who nevertheless defended the doctrine of state sovereignty. Bingham said,
The care of the property, the liberty, and the life of the citizen. . .is in the States and not in the Federal Government. I have sought to effect no change in that respect. (emphasis in original)
After the war, the victorious Republicans decided that federal oversight, particularly the judicial authority of the Supreme Court, would be required to force the Southern States to give voting rights to black men. This was despite the fact that black men could not vote in most states of the North in 1865.
The Republicans’ insistence that the federal government needed more power to enforce the civil rights revolution was not driven by their great love of racial equality. On the contrary, the reason why Republicans were so keen for blacks to vote in the South, but not the North, was that the black vote was necessary for them to win elections in the South.
Almost to a man, white Southerners after the war would not vote for the Republican Party. The Republicans needed the black vote if they were to win any elections, and some like Thaddeus Stevens felt that without securing the Southern vote the Union’s military victory would be undermined. Berger observes that,
The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset.
. . .
Senator [Charles] Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.”
Senator Pomeroy of Kansas presumably did not think black people needed “security” in Kansas, where they could not vote. The Kansas Constitution limited the vote to white men—“every white male of twenty-one years and upwards.” An attempt in 1867 to extend the Kansas vote to black men failed, and black men were not able to vote in Kansas until the Fifteenth Amendment was passed in 1870.
The same pattern is seen in Connecticut and other Northern states. Berger notes that only five states permitted blacks to vote—Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. He, therefore, points out that it is anachronistic to suppose that the equal protection clause encompassed voting rights. He asks:
If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow?
Further, Berger highlights the fact that comparatively few black people lived in the states that did permit blacks to vote. There was no risk that the black vote would make any difference to election outcomes in New Hampshire, for example, which only had about 250 black men in 1860. Today, black voters constitute about 1.2 percent of the New Hampshire electorate. This contrasts sharply with, for example, South Carolina, where blacks were 59 percent of the population in 1860 and easily carried the vote when enfranchised after the war.
Berger observes that the language of Northern politicians is greatly revealing—it shows that their policies to support the black vote in the South were not always driven by genuine respect for black voters:
With but “6% of the Negro population,” New England’s advocacy of Negro suffrage, Senator Edgar Cowan of Pennsylvania acidly lectured Sumner, came cheap: “he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant negro population just emerged from slavery.”
Even Thaddeus Stevens, also of Pennsylvania, a chief architect of post-war reconstruction who insisted that blacks must be given the vote in the South, was not prepared to countenance the same for his own state. He said, “In my county are fifteen hundred escaped slaves. If they are specimens of the negroes of the South, they are not qualified to vote.”
Berger notes that even William Lloyd Garrison, the famous abolitionist, “came out against the forcing of Negro suffrage upon the South.” The Republican view was summarized by Roscoe Conkling, a Congressman from New York, who said that, “The northern states, most of them, do not permit negroes to vote. Some of them have repeatedly and lately pronounced against it.”
Indeed, had the Radical Republicans in 1865 openly said that they sought to abolish state sovereignty and vest ultimate power over voting rights in the federal government, they would likely have faced a revolt from their own supporters. The key to the success of their revolution was framing it not as a revolution but merely as a geographically-confined attempt to secure voting rights for blacks in the South. Berger notes,
It was because of the prevalence of such sentiment that [the Illinois senator Lyman] Trumbull, defending the Civil Rights Bill [of 1866] after President Johnson’s veto, felt constrained to reassure the Senate that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in the rights of person and property.”
The meaning of the phrase “protects all alike” was later litigated before the Supreme Court, the question being whether the “separate but equal” doctrine was compatible with the equal protection clause. While Plessy v. Ferguson initially held that equal protection did not require racial integration, the Supreme Court ultimately ruled in Brown v. Board of Education that racial segregation violates the equal protection clause.
In the hands of the Supreme Court, the equal protection clause became a catch-all provision through which the Court could strike down any state legislation that it deemed incompatible with racial equality. This all but undermined the doctrine of state sovereignty.
The evolution of the Fourteenth Amendment illustrates how, in the hands of an activist court, constitutional amendments have incrementally shifted power from the states to the federal jurisdiction.
The relevance of state sovereignty is not limited to the events of the nineteenth century. Even today, when differences of political opinion often arise between states, a principled way for states to coexist peacefully would be by upholding state sovereignty as a foundation on which citizens can “agree to disagree” on issues falling within state jurisdiction.
