Government by Judiciary: The Transformation of the Fourteenth Amendment
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...
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Foreword xv Preface to the Second Edition xxi Acknowledgments xxiii 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\ Bibliography 493\ Index of Cases 517\ General Index 525
