Government by Judiciary

Preface to the Second Edition

Judiciary_i-xxiv.indd 21 5/7/11 12:59 PM Preface to the Second Edition The publication in 1977 of Government byJudiciary provoked a storm of controversy, leading a critic to exclaim in 1983 that "refuting Raoul Berger has become a cottage industry."1 Criticism flourishes unabated. A critic more candid than most observed that Berger has forced all serious constitutional theorists to deal with questions regarding the proper principles of constitutional interpretation and the proper role of the courts, questions that many theorists, basking in the glow of Warren Court decisions on individual rights, felt content to ignore."2 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 In the eighteen years since publication, I have indited forty-odd responses , in which each respective critique is examined in great- and, I r. Richard B. Saphire, "Judicial Review in the Name of the Constitution," 8 U. Dayton L. Rev. 745, 753 (1983). z. Larry A. Alexander, "Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique," 42 Ohio St. L.J. 3, 4 (r98r). C. Vann Woodward wrote, "Raoul Berger's Government by Judiciary raises scores of fascinating questions that no one in the field can afford to ignore." Dust jacket of Government by Judiciary. Sanford Levinson, himself an activist, wrote of attempts to construct a defense of the modern cases: "it is naive to pretend that the construction will be an easy task or that we can so easily shed the view of the Constitution, and its limits, articulated by Berger." Sanford Levinson, "Book Review," Nation, Feb. z6, 1983, at 248, 2 50. "T here is no history without polemic ... without originating in antagonism to something which exists and which it wants to combat and substitute." Umberto Morra, Conversations With Berenson 103 (1965). 3· Oxford Dictionary ofQuotations z69 (3d ed. 1979). XXI Judiciary_i-xxiv.indd 22 5/7/11 12:59 PM XXII Preface to the Second Edition am afraid, tedious-detail. The interested reader will find a bibliography of my responses at the end of the book.4 These critiques prompted me to preserve the original text in this second edition so that readers may in the future have before them what excited so much controversy. The materials that have accumulated since 1977 are set forth in greatly abbreviated form as a supplement to a relevant chapter. New material added to the footnotes of the original text is identified by brackets. A word in extenuation ofthe profuse quotations. Since my views have been and remain under assault, I prefer not to rely on mere expressions of my opinion but to employ appraisals by others.5 This revision was completed in my ninety-fifth year, so the gentle reader should cast upon it a charitable eye, bearing in mind Dr.Johnson's remark about "a dog's walking on his hind legs. It is not done well; but you are surprised to find it done at all."6 Finally, I am indebted to the Earhart Foundation for a grant that facilitated completion ofthis second edition. Raoul Berger Concord, Massachusetts 1996 4· Locke wrote that a rebuttal is required lest victory be "adjudged not to him who had the truth on his side, but by the last word in the dispute." John Locke, An Essay Concerning Human Understanding 204-206 (Raymond Wilburn ed. 1942). Jefferson urged Madison to reply to Hamilton's "Pacificus" essays, giving as his reason, "Nobody answers him and his doctrines will therefore be taken for confessed." Stanley Elkins and Eric McKitrick, The Age ofFederalism 362 (1993). 5· At the conclusion of his Paradoxes ofLegal Science (1928), Benjamin Cardozo wrote, "I may seem to quote overmuch. My excuse is the desire to make manifest that back of what I write is the sanction of something stronger than my own unaided thought." Selected Writings ofBenjamin N. Cardozo 3IJ (Margaret Hall ed. r947). 6. James Boswell, The Life ofSamuel Johnson 290 (Everyman ed. 1992). ...