Synopses & Reviews
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.
It is Berger's theory that the United States Supreme Court has embarked on "a continuing revision of the Constitution, under the guise of interpretation, " thereby subverting America's democratic institutions and wreaking havoc upon Americans' social and political lives.
Includes bibliographical references (p. 493-516) and indexes.
Table of Contents
Preface to the Second Edition xxi
Abbreviations xxiv Part I
1. Introduction 3
Supplementary Note on the Introduction 18
2. “Privileges or Immunities” 30
Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights 44
3. The “Privileges or Immunities of a Citizen of the United States” 57
4. Negro Suffrage Was Excluded 70
Supplementary Note on Suffrage 85
5. Reapportionment 90
6. The “Open?Ended” Phraseology Theory 116
7. Segregated Schools 132
Supplementary Note on Segregated Schools 146
8. Incorporation of the Bill of Rights in the Fourteenth Amendment 155
Supplementary Note on Incorporation 174
9. Opposition Statements Examined 190
10. “Equal Protection of the Laws” 198
11. “Due Process of Law” 221
12. Section Five: “Congress Shall Enforce” 245
13. Incorporation of Abolitionist Theory in Section One 253
Supplementary Note on Abolitionist Influence 266 Part II
14. Natural Law to Libertarian Due Process 273
Supplementary Note on Natural Law and the Constitution 302
15. “The Rule of Law” 307
16. The Judiciary Was Excluded From Policymaking 322
Supplementary Note on Exclusion of the Judiciary 332
17. The Turnabout of the Libertarians 337
18. Liberals and the Burger Court 358
19. The Legitimacy of Judicial Review 369
Supplementary Note on the Role of the Court 378
20. Why the “Original Intention”? 402
Supplementary Note on Original Intention 410
21. Arguments for Judicial Power of Revision 428
22. “Trial by Jury”: Six or Twelve Jurors? 448
23. Conclusion 457 Supplementary Note on the Conclusion 466
Appendix A: Van Alstyne's Critique of Justice Harlan's Dissent 471
Appendix B: Judicial Administration of Local Matters 480
The Writings of Raoul Berger 485
Index of Cases 517
General Index 525