Government by Judiciary. Raoul Berger

for he is a man of never-say-die temperament and hard-nosed realism. In any event, if the great desideratum should come to pass, nobody would have done more to bring it about than Raoul Berger, for his writings, in their original form or in the works of disciples and converts, have become common coin of the realm.

      Forrest McDonald

      University of Alabama

Preface to the Second Edition

      The publication in 1977 of Government by Judiciary 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 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 of the 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 of this second edition.

      Raoul Berger

      Concord, Massachusetts

      1996

Acknowledgments

      Eminent historians, social scientists, and lawyers have read portions or all of my manuscript and favored me with their suggestions. I do not name them in order to spare them the embarrassment of being associated with my views. Above all I am indebted to them for encouragement.

      R. B.

      Concord, Massachusetts

      August 1977

Abbreviations

Annals of Congress	Annals of Congress (1st Congress, 1st Session 1789)
Bickel	Alexander M. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1 (1955)
Donald, Sumner I	David Donald, Charles Sumner and the Coming of the Civil War (1960)
Donald, Sumner II	David Donald, Charles Sumner and the Rights of Man (1970)
Elliot	Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836)
Fairman, History	Charles Fairman, Reconstruction and Reunion 1864–1888, vol. 6, part 1 of History of the Supreme Court of the United States (1971)
Fairman, Stanford	Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?,” 2 Stanford Law Review 5 (1949)
Farrand	Max Farrand, The Records of the Federal Convention of 1787 (1911)
Federalist	The Federalist (Modern Library ed. 1937)
Flack	Horace Flack, The Adoption of the Fourteenth Amendment (1908)
Globe	Congressional Globe (39th Congress, 1st Session 1866)
Globe App.	Appendix to Globe
Graham	Howard Jay Graham, Everyman’s Constitution (1968)
James	Joseph B. James, The Framing of the Fourteenth Amendment (1965)
Kelly, Fourteenth	Alfred H. Kelly, “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Michigan Law Review 1049 (1956)
Kendrick	Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914)
Levy, Against the Law	Leonard W. Levy, Against the Law: The Nixon Court and Criminal Justice (1974)
Levy, Warren	Leonard W. Levy, ed., The Supreme Court Under Earl Warren (1972)
Lusky	Louis Lusky, By What Right? (1975)
Poore	Ben P. Poore, Federal and State Constitutions, Colonial Charters (1877)
TenBroek	Jacobus tenBroek, Equal Under Law (1965)
Van Alstyne	William W. Van Alstyne, “The Fourteenth Amendment, the ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 Supreme Court Review 33

PART I

1

       Introduction

      My colleagues have learned to respect nothing but evidence, and to believe that their highest duty lies in submitting to it, however it may jar against their inclinations.

—THOMAS H. HUXLEY^*

THE Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court’s “exercise of the amending power,” ¹ its continuing revision of the Constitution under the guise of interpretation. Because the Amendment is probably the largest source of the Court’s business² and furnishes the chief fulcrum for its control of controversial policies, the question whether such control is authorized by the Constitution is of great practical importance.

Those whose predilections are mirrored in a given decision find such judicial revision an exercise of statemanship.³ Others consider that a democratic system requires adherence to constitutional limits, by courts no less than presidents.⁴ This study seeks to demonstrate that the Court was not designed to act, in James M. Beck’s enthusiastic phrase, as a “continuing constitutional convention,” ⁵ that the role assigned to it was far more modest: to police the boundaries drawn in the Constitution.⁶ A corollary is that the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable [government], more than for a faithful exercise of its powers.” ⁷

The present generation, floating on a cloud of post–Warren Court euphoria, applauds a Court which read its libertarian convictions into the Fourteenth Amendment, forgetting that for