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Government by Judiciary

Raoul Berger

Publication Year: 2012

The Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny.

— Raoul Berger

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, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power."

The Court has accomplished this transformation by ignoring or actually distorting the original intent of both the framers and the supporters of the Fourteenth Amendment. In school desegregation and legislative reapportionment cases, for example, the Court manipulated the history, meaning, and purpose of the amendment's Equal Protection Clause in order to achieve a desired political result. In cases involving First Amendment freedoms and the rights of the accused, the judges converted the Fourteenth Amendment's Due Process Clause into a vehicle for the nationalization of the Bill of Rights. Yet these actions were nothing less than "usurpations" that robbed "from the States a power that unmistakably was left to them."

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.

Raoul Berger retired in 1976 as Charles Warren Senior Fellow in American Legal History, Harvard University.

Published by: Liberty Fund

Title Page, Copyright

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pp. xiii-xiv

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pp. xv-xx

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. ...

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Preface to the Second Edition

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pp. xxi-xxii

Each critique prompted me to reexamine and retest my conclusions, for scholars are apprehensive whether they have overlooked a fact that will explode their inferences. "The great tragedy of science," Thomas Huxley remarked, is "the slaying of a beautiful hypothesis by an ugly fact."3 ...

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pp. xxiii

Eminent historians, social scientists, and lawyers have read portions or all of my manuscript and favored me with their suggestions. I do not name them in order to spare them the embarrassment of being associated with my views. Above all I am indebted to them for encouragement.


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pp. xiv

Part I

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1. Introduction

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pp. 3-29

The Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court's "exercise of the amending power,"1 its continuing revision of the Constitution under the guise of interpretation. Because the Amendment is probably the largest source of the Court's business2 ...

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2. "Privileges or Immunities"

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pp. 30-56

The "privileges or immunities" clause was the central provision of the Amendment's §I, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of I 866,1 which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. ...

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3. The "Privileges or Immunities of a Citizen of the United States"

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pp. 57-69

Narrow as was the protection afforded blacks by the "privileges or immunities" clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of "a citizen of the United States" from the freedom from the discrimination proscribed by the Amendment. ...

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4. Negro Suffrage Was Excluded

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pp. 70-89

No area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage.1 The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, ...

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5. Reapportionment

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pp. 90-115

Baker v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a "new chapter of judicial adventurism."1 When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. ...

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6. The "Open-Ended" Phraseology Theory

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pp. 116-131

The "open-ended" theory, shortly stated, is that the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded "specific" terms, as Justice Brennan put it, in favor of "far more elastic language-language that, as one scholar [Alexander Bickel] has noted, ...

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7. Segregated Schools

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pp. 132-154

The "desegregation" decision in Brown v. Board of Education1 was, as Richard Kluger called it, an act of "Simple Justice,"2 a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.3 ...

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8. Incorporation of the Bill of Rights in the Fourteenth Amendment

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pp. 155-189

Invocation of the Bill of Rights against the States is of fairly recent origin, 1 whether it be regarded within the older framework of "adoption" or the more recent theory of "incorporation."2 From the First Amendment's "Congress shall make no law" may be gathered that it was to apply exclusively to Congress, ...

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9. Opposition Statements Examined

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pp. 190-197

The case for a broad reading of the Fourteenth Amendment has been rested in large part on statements by those who opposed both the Civil Rights Bill and the Amendment. That is a sharp departure from traditional canons of interpretation voiced by Thomas Jefferson; ...

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10. "Equal Protection of the Laws"

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pp. 198-220

It has long been the habit of the Supreme Court to say that the Fourteenth Amendment "speaks in general terms, and those are as comprehensive as possible."1 Its opinions are replete with references to the "majestic generalities" of the Fourteenth Amendment2 to the "vague contours" of the due process clause3 and the like. ...

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11. "Due Process of Law "

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pp. 221-244

To this day," Arthur Sutherland wrote in 1965, "no one knows precisely what the words 'due process of law' meant to the draftsmen of the fifth amendment, and no one knows what these words meant to the draftsmen of the fourteenth amendment."1 True it is that after the 1880s the phrase was transformed by the Court ...

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12. Section Five: "Congress Shall Enforce"

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pp. 245-252

One might read this to mean that the courts are without authority to enforce the Fourteenth Amendment except as Congress empowers them to do so. Nevertheless, Justice Brennan stated in 1970, "we have consistently held that the Amendment grants power to the Court" and brushed the issue aside as "of academic interest only."2 ...

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13. Incorporation of Abolitionist Theory in Section One

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pp. 253-270

Enough has been set forth to raise considerable doubt about the Graham-tenBroek theory that §1 of the Fourteenth Amendment embodies the substantive due process—equal protection concepts forged by certain abolitionists in the antislavery crusade of the 1830s-1860s.1 ...

Part II

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14. From Natural Law to Libertarian Due Process

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pp. 273-306

The development of substantive due process was described by Robert G. McCloskey, a friend of the Court, as "the classic example of 'government by judiciary.' "1 So accustomed are we grown to this development—whereby courts substitute their own views of policy for those of legislative bodies ...

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15. "The Rule of Law"

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pp. 307-321

For a generation the constitutional basis for the "revolutionary" changes wrought by the Warren Court has gone virtually unchallenged.1 Justice Black, to be sure, unremittingly attacked decisions which to his mind rested on supraconstitutional authority, but his views could be heavily discounted because he himself was guilty ...

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16. The Judiciary Was Excluded From Policymaking

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pp. 322-336

It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymakingrejection of their participation in a Council of Revision of legislationwent unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright.1 ...

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17. The Turnabout of the Libertarians

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pp. 337-357

Why did the libertarians, after decades of berating the Court for reading its laissez-faire predilections into the Constitution and imposing its own economic policy on the nation,1 turn around and defend it for pursuing the same course with respect to libertarian values? ...

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18. Liberals and the Burger Court

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pp. 358-368

Lamentations over the "regressive" course of the Burger Court in the field of civil liberties fill the air. The New York Times, for example, stated: "There was a time not so far distant when the United States Supreme Court was the staunch and ultimate defender of civil rights and liberties ... [T]he Court seems clearly to be beating a path of retreat ...

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19. The Legitimacy of Judicial Review

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pp. 369-401

The most fundamental question of all, as Thomas Grey rightly stated, is "the legitimacy of judicial review itself,"1 a question that goes beyond the scope of the power to its very existence, however limited. After remarking, "Whether this enormous power can fairly be deduced from the language of the Constitution, ...

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20. Why the "Original Intention"?

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pp. 402-427

Current indifference to the "original intention"—shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments—is a relatively recent phenomenon. Those who would adhere to it are scornfully charged with "filiopietism," "verbal archeology,"1 ...

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21. Arguments for Judicial Power of Revision

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pp. 428-447

Where early claims to extraconstitutional power were made in the name of "natural law," the present fashion is to invoke the "living Constitution" when it is sought to engraft or amputate a limb.1 Commentators at a loss to justify judicial arrogations fall back on Marshall's sonorous reference to a "constitution intended to endure for ages to come."2 ...

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22. "Trial by Jury": Six or Twelve Jurors?

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pp. 448-456

The increasingly free and easy judicial revision of constitutional norms is strikingly exemplified by Williams v. Florida,1 wherein the Supreme Court, for the first time in our history, held that a 6-man jury satisfies the requirement of trial by jury. By Justice White's own testimony a 12-man jury has been the invariable common law practice ...

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23. Conclusion

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pp. 457-470

The historical records all but incontrovertibly establish that the framers of the Fourteenth Amendment excluded both suffrage and segregation from its reach: they confined it to protection of carefully enumerated rights against State discrimination, deliberately withholding federal power to supply those rights where they were not granted by the State to anybody, white or black. ...

Appendix A: Van Alstyne's Critique of Justice Harlan's Dissent

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pp. 471-479

Appendix B: Judicial Administration of Local Matters

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pp. 480-484

The Writings of Raoul Berger

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pp. 485-492


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pp. 493-516

Index of Cases

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pp. 517-524

General Index

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pp. 525-555

E-ISBN-13: 9781614877745
E-ISBN-10: 1614877742
Print-ISBN-13: 9780865971448

Page Count: 578
Publication Year: 2012

Edition: New Edition

Research Areas


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Subject Headings

  • United States. Constitution. 14th Amendment.
  • Political questions and judicial power -- United States.
  • Civil rights -- United States.
  • Judge-made law -- United States.
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