Government by Judiciary: The Transformation of the Fourteenth Amendment (Studies in Jurisprudence and Legal Hist)

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. Raoul Berger (1901–2000) was Charles Warren Senior Fellow in American Legal History, Harvard University.

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.

1. Introduction -- 2. Privileges Or Immunites -- 3. The Privileges Or Immunities Of A Citizen Of The United States -- 4. Negro Suffrage Was Excluded -- 5. Reapportionment -- 6. The Open-ended Phraseology Theory -- 7. Segregated Schools -- 8. Incorporation Of The Bill Of Rights In The Fourteenth Amendment -- 9. Opposition Statements Examined -- 10. Equal Protection Of The Laws -- 11. Due Process Of Law -- 12. Section Five : Congress Shall Enforce -- 13. Incorporation Of Abolitionist Theory In Section One -- 14. From Natural Law To Libertarian Due Process -- 15. The Rule Of Law -- 16. The Judiciary Was Excluded From Policymaking -- 17. The Turnabout Of The Libertarians -- 18. Liberals And The Burger Court -- 19. The Legitimacy Of Judicial Review -- 20. Why The Original Intention? -- 21. Arguments For Judicial Power Of Revision -- 22. Trial By Jury : Six Or Twelve Jurors? -- 23. Conclusion -- Appendix A : Van Alstyne's Critique Of Justice Harlan's Dissent -- Appendix B : Judicial Administration Of Local Matters -- The Writings Of Raoul Berger. Raoul Berger ; With A Foreword By Forrest Mcdonald. Includes Bibliographical References (p. 493-516) And Indexes. 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. Raoul Berger (1901–2000) was Charles Warren Senior Fellow in American Legal History, Harvard University. Please note: This title is available as an ebook for purchase on Amazon, Barnes and Noble, and iTunes.