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Formal retirement has not dulled Professor Berger's appetite for scholarship, or controversy. Here, he offers a blistering, strict-constructionist attack on the Supreme Court's track record in death-penalty cases over the past decade--the flip-flops from McGautha in 1971 (the death penalty is OK), to Furman in 1972 (the death penalty is unconstitutional under the Eighth Amendment as a ""cruel and unusual punishment""), to Gregg in 1976 and its progeny (the death penalty is OK if certain standards are applied). The Court, Berger argues, has used the Eighth Amendment as ""a vehicle to impose its own morals upon the people,"" and it adds up to ""one more arrogation of power under the aegis of the Fourteenth Amendment . . . another chapter in the tale of judicial make believe."" Since the underpinning of Furman is the concept that the ""cruel and unusual punishments"" clause of the Eighth Amendment applies to state-court trials via the Fourteenth Amendment, Berger opens his analysis with a sweeping historical re-examination of the theory that the Bill of Rights' protections are ""incorporated"" on either a general or selective basis under the Fourteenth Amendment. He concludes that the states ""did not intend to turn over supervision of their criminal justice system to the Supreme Court."" The main concern of the Fourteenth Amendment's framers, he asserts, was to prevent discrimination against blacks' exercise of certain enumerated rights--not to regulate the rights themselves. As for the Eighth Amendment, Berger dismisses as ""spurious"" the notion that it prohibits any punishment the Court simply deems ""excessive""; the ""cruel and unusual punishments"" clause, he insists, must be interpreted in the context of contemporaneous 18th-century views on criminal penalties and the founding fathers' ""categorical rejection of judicial participation in legislative policy-making."" Thus, for the Court to substitute its own view of the appropriateness of the death penalty, based on the ""dignity of man"" represents a triumph of ""result-oriented jurisprudence"" over proper application of constitutional law: ""At issue is not whether a man may be hanged for stealing a loaf of bread, but whether the Court is authorized to take that decision away from the legislature and the people."" Well-researched and well-argued, this short, densely-packed volume should land like a scholarly hand grenade on the champions of judicial activism.

Pub Date: Oct. 1st, 1982
ISBN: 1583484302
Publisher: Harvard Univ. Press