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.

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.

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........

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