GOVERNMENT BY JUDICIARY: The Transformation of the Fourteenth Amendment by Raoul Berger
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GOVERNMENT BY JUDICIARY: The Transformation of the Fourteenth Amendment

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Scholar Berger, who used the close study of legislative history--what was the framers' ""original intention""?--to uphold the Supreme Court's power of judicial review (Congress v. The Supreme Court, 1969), now employs the same approach to lambaste the Court's ""free and easy"" misreadings of the language of the Fourteenth Amendment (""No State shall. . .""/ ""equal protection under the laws""/ ""due process""). Earl Warren did not merely shape the law to achieve those lauded libertarian results: ""he upended it; he revised the Fourteenth Amendment to mean exactly the opposite of what its framers designed it to mean."" Piling ""proof on proof, even at the risk of tedium,"" and at the risk of seeming to overweight the past, footnote-loving Berger documents the Amendment's history: it was the work of the Reconstructionist 39th Congress, which, motivated by Northern ""Negrophobia"" as well as left-over abolitionism, clearly intended to leave questions of right-to-vote and segregation to the individual states; not the Bill of Rights, but only fundamental rights--life, liberty--were to be protected against state action, and only had to be equal (i.e., impartial) within each state. And the ""extraordinary transformation"" of the ""due process"" clause--first as a policy-making weapon of anti-populist judges, only recently the tool of benevolent ones--leads Berger into a sweeping indictment of Justices (Frankfurter, Black, Douglas) and scholars (especially Leonard Levy) who've viewed the Constitution as ""a blank check to posterity."" The response to changing times, says Berger, must come from the will of the people--via Constitutional amendments--and not from judges who believe that the ""people could not be trusted."" Current relevance? ""It is never too late to challenge the usurpation of power,"" and, since the Burger Court clings to ""judicial governance,"" Berger suggests that judges begin to curb their reach for policy-making power and withdraw from government by decree--like the administration of school systems. Though much here is familiar (Berger's cross-references oddly ignore Alexander Bickel's mildly cautionary The Supreme Court and The Idea of Progress), the fact that this cease-and-desist cry is coming from an impeccably credentialed libertarian may give Berger's lumbering but eloquent hymn to the ""rule of law"" unprecedented weight in halls and studies of justice.

Pub Date: Oct. 1st, 1977
Publisher: Harvard Univ. Press