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Government by Judiciary: the Transformation of the Fourteenth Amendment [1977]

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Government by Judiciary: the Transformation of the Fourteenth Amendment [1977] The Online Library of Liberty A Project Of Liberty Fund, Inc. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at [email protected]. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment Edition Used: Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997). Author: Raoul Berger Foreword: Forrest McDonald About This Title: It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on “a continuing revision of the Constitution, under the guise of interpretation.” Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out that “the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power.” This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment Table Of Contents Foreword Preface to the Second Edition Acknowledgments Abbreviations Part I 1: Introduction Supplementary Note On the Introduction 2: “privileges Or Immunities” Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights 3: The “privileges Or Immunities of a Citizen of the United States” 4: Negro Suffrage Was Excluded Supplementary Note On Suffrage 5: Reapportionment 6: The “open-ended” Phraseology Theory 7: Segregated Schools Supplementary Note On Segregated Schools 8: Incorporation of the Bill of Rights In the Fourteenth Amendment Supplementary Note On Incorporation 9: Opposition Statements Examined 10: “equal Protection of the Laws” 11: “due Process of Law” 12: Section Five: “congress Shall Enforce” 13: Incorporation of Abolitionist Theory In Section One Supplementary Note On Abolitionist Influence Part Ii 14: From Natural Law to Libertarian Due Process Supplementary Note On Natural Law and the Constitution * 15: “the Rule of Law” 16: The Judiciary Was Excluded From Policymaking Supplementary Note On Exclusion of the Judiciary 17: The Turnabout of the Libertarians 18: Liberals and the Burger Court 19: The Legitimacy of Judicial Review Supplementary Note On the Role of the Court 20: Why the “original Intention”? Supplementary Note On Original Intention 21: Arguments For Judicial Power of Revision 22: “trial By Jury”: Six Or Twelve Jurors? 23: Conclusion Supplementary Note On the Conclusion Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent Appendix B: Judicial Administration of Local Matters PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment Raoul Berger For Patty All persons born or naturalized in the United States . are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. —Fourteenth Amendment, §1 Nullius in Verbo —Motto of the Royal Society, London Take nobody’s word for it; see for yourself PLL v6.0 (generated September, 2011) 6 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment [Back to Table of Contents] Foreword Raoul Berger’s original intention, if I may use that phrase in a different way than he does, was not to become a great constitutional historian. Indeed, his work as a scholar is actually the fourth (or fifth, depending on how you count) of the careers he has held during a long and illustrious lifetime. His first love was and continues to be music. As a youth he studied the violin in New York and Berlin and then went on to make a number of highly praised concert tours, appear as a soloist with the Cleveland Symphony, and serve as second concertmaster with the Cincinnati Symphony Orchestra and first violinist of the Cincinnati String Quartet. But it was difficult in the 1920s, as it is today, to earn a living as a soloist in America, and the drudgery of life in an orchestra began to be numbing to his soul. Accordingly, at the age of twenty-seven, he decided to enroll in college and have a go at making his way in the real world. At thirty-one he entered Northwestern University Law School, and at thirty-four he was ready to hang up his shingle as a practicing attorney. In 1938, having spent two years in private practice and another taking an advanced degree at Harvard, Berger began his succession of professions in earnest. The first was public service, including stints with the Securities and Exchange Commission and service as general counsel to the Alien Property Custodian and as special assistant to the attorney general. In 1946 he retired from government, and for the next sixteen years he was engaged in private practice in Washington, D.C. Then came yet another calling as a law professor at the University of California, Berkeley, and then at Harvard Law School as Charles Warren Senior Fellow in American Legal History until his retirement in 1976. In each of these activities Berger achieved considerable distinction, but it was not until he embarked upon his journey as a constitutional scholar that he began rising to greatness. His first book, published in 1969, was Congress v. The Supreme Court. In it, he concluded after an exhaustive study of the documentary record that the framers of the Constitution intended that the federal courts have the power to review legislative acts and pass on their constitutionality, though there is no mention of judicial review to be seen in the text of the Constitution—a conclusion that has recently been buttressed by the discovery of some previously unknown documents.1 That finding was scarcely revolutionary, for it coincided with the consensus among students of the founding; but the book was marked by several qualities that characterize all of Berger’s later works. The quantity of his research is massive but is combined with pinpoint accuracy in dealing with details.2 His prose is lucid. He brings to his undertakings a zestful enthusiasm, an indication that he is impelled by a sheer love of scholarship—the traditional scholarly ideal that the genuine scholar seeks to know the truth for its own sake—and not by the ideological predilections that distort so much historical research. And, in Congress v. The Supreme Court Berger announced his commitment to the ages-old but vitally alive proposition that, when PLL v6.0 (generated September, 2011) 7 http://oll.libertyfund.org/title/675 Online Library of Liberty: Government by Judiciary: The Transformation of the Fourteenth Amendment construing a constitution, it is permissible and often necessary to go beyond the text of the document to ascertain, if possible, the intentions of its authors but decidedly not permissible to read into it ideas derived from “natural rights” dogmas or other external values.
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