Government by Judiciary: The Transformation of the Fourteenth Amendment

by Raoul Berger

Overview

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.

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Product Details

ISBN-13:	9781614871736
Publisher:	Liberty Fund, Incorporated
Publication date:	06/01/1997
Sold by:	Barnes & Noble
Format:	eBook
Pages:	578
File size:	821 KB
Age Range:	18 Years

About the Author

Raoul Berger was Charles Warren Senior Fellow in American Legal History at the Harvard Law School. Among his books is Executive Privilege: A Constitutional Myth.

Table of Contents

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