Government by Judiciary: The Transformation of the Fourteenth Amendment
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.” 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.
Read the Liberty Classic on this title from Law & Liberty
Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
Copyright:
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
People:
- Author: Raoul Berger
- Foreword: Forrest McDonald
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Table of Contents
- Contents
- Foreword
- Preface to the Second Edition
- Abbreviations
- PART I
- Introduction
- Background
- Supplementary Note on the Introduction
- “Privileges or Immunities”
- The Civil Rights Act of 1866
- Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
- A
- B
- the civil rights bill of 1866
- fundamental rights
- The “Privileges or Immunities of a Citizen of the United States”
- Negro Suffrage Was Excluded
- The Grant of Suffrage Was Excluded From §1
- Negro Suffrage Was Unacceptable
- attachment to state sovereignty
- The Effect of §2
- Supplementary Note on Suffrage
- Reapportionment
- Republican Form of Government
- Chief Justice Warren’s Opinion in Reynolds v. Sims
- Justice Brennan’s Opinion in Oregon v. Mitchell
- The “Open-Ended” Phraseology Theory
- alexander bickel
- alfred kelly
- william van alstyne
- Segregated Schools
- Supplementary Note on Segregated Schools
- brown v. board of education
- Incorporation of the Bill of Rights in the Fourteenth Amendment
- Supplementary Note on Incorporation
- modern rights
- Opposition Statements Examined
- “Equal Protection of the Laws”
- What Was Equal Protection to Protect?
- Freedom From Discrimination vs. Absolute Rights
- Congressional Power: Corrective or General
- “Due Process of Law”
- The 39th Congress
- Person or Citizen
- Section Five: “Congress Shall Enforce”
- Incorporation of Abolitionist Theory in Section One
- Supplementary Note on Abolitionist Influence
- PART II
- From Natural Law to Libertarian Due Process
- Substantive Economic Due Process
- From Economic Due Process to the “Preferred Position”
- Supplementary Note on Natural Law and the Constitution*
- “The Rule of Law”
- Constitutionalism and the Rule of Law
- The Judiciary Was Excluded From Policymaking
- The Council of Revision
- Judicial “Discretion” in 1787
- Supplementary Note on Exclusion of the Judiciary
- The Turnabout of the Libertarians
- Liberals and the Burger Court
- The Legitimacy of Judicial Review
- Supplementary Note on the Role of the Court
- activist theorizing
- Why the “Original Intention”?
- Supplementary Note on Original Intention
- the american scene
- english sources
- james hutson’s critique of the sources
- Arguments for Judicial Power of Revision
- Chief Justice Marshall
- Mr. Justice Holmes
- Mr. Justice Frankfurter
- Professors Thomas C. Grey and Louis Lusky
- “Trial by Jury”: Six or Twelve Jurors?
- A Jury of the Vicinage
- Conclusion
- Supplementary Note on the Conclusion
- Van Alstyne’s Critique of Justice Harlan’s Dissent
- Judicial Administration of Local Matters
- The Writings of Raoul Berger
- books
- articles
- Bibliography
- i. federal documents
- ii. books
- iii. articles