Government by Judiciary: The Transformation of the

Government by Judiciary: The Transformation of the Fourteenth Amendment [PDF / Epub] ★ Government by Judiciary: The Transformation of the Fourteenth Amendment By Raoul Berger – 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 It is Berger’s theory that Judiciary: The ePUB ✓ 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 livesRaoul Berger – was Charles Warren Senior Fellow in American Legal History Harvard UniversityPlease note This title Government by PDF/EPUB or is available as an ebook for purchase on Barnes and Noble and iTunes.

  • Paperback
  • 578 pages
  • Government by Judiciary: The Transformation of the Fourteenth Amendment
  • Raoul Berger
  • English
  • 14 December 2016
  • 9780865971448

3 thoughts on “Government by Judiciary: The Transformation of the Fourteenth Amendment

  1. Frank Stein Frank Stein says:

    This book could define the term tendentious The author Raoul Berger had earlier garnered praise from liberal scholars for his robust defenses of both judicial review and the impeachment power the latter right about the time Nixon was about to become subject to what some saw as an antiuated process Then in 1976 Berger went on to lob a bombshell whose impact reverberates to in legal scholarship to this day His book on the 14th Amendment claims that it guarantees almost nothing the court has said it guarantees over the past 100 years Privileges and Immunities Eual Protection of the Laws and Due Process of Law mean no than that the US states have to protect the life liberty and property of citizens All else is extraneous In this view the incorporation of the Bill of Rights desegregation and one man one vote are all judicial neologisms with no background in the amendment itselfThe book understands the controversy inherent in these arguments and so every statement is extensively footnoted every counterargument confronted every conclusion elaborated Berger admits this can make the book tedious but than that it can make the book seem like a mere adversarial argument rather than an act of writing history and this makes one not a little suspicious There is no attempt to admit honest disputes little desire to confront ambiguity For my money I still like Earl Martz's take still restrained but not as much on the 14th amendmentStill the level of detail here is uneualed and the insights often profound For instance he argues that section 5 of the amendment giving Congress the power to enforce it by all appropriate laws seems to exclude the judiciary from acting without express sanction by statue since under the antebellum Prigg v Pennsylvania and Ableman v Booth decisions the judiciary could defend constitutional rights only if Congress acted first and since under then current federal jurisdiction laws most cases were still kept in state courts unless Congress decided otherwise Section Five clearly seemed to ratify those acts Similarly eual protection under law meant only that existing laws operated eually when prosecuted against individuals Protection could not define an individual's relationship to a statute but only to the enforcement of that statute and the only restraint on uneual statutes was the very limited privileges and immunitities clause which most drafters agreed was defined by an earlier case Corfield v Coryell which allowed life liberty and property the right to travel and a few other fundamental rightsBerger doesn't totally go for the restrictive view of the amendment however He still thinks Justice Miller's 1873 Slaughterhouse decision which limited the amendment to protection of a few national rights which meant only things like travel on the high seas as opposed to those that could be guaranteed by the states was in the wrong He says at least citizenship was supposed to be granted to all in that time even though citizenship was still a limited ideaThis is worth plodding through if you want insight into the most important act ever drafted in American history outside the Constitution itself and if you want to wrap your head around a truly different conception of law and political practice than we have today Ultimately though Berger would have served his own purpose better if he had admitted to at least some of the ambiguities in this most conflicted of amendments

  2. Gonzo Gonzo says:

    This is easily the greatest book of legal history I've ever come across Tedious at times for its repetition plodding at points for its straightforward prose nothing can change the fact that it is the best book extant to lay out a consistent argument for why the Fourteenth Amendment exists The Fourteenth Amendment has had two existences since 1868 First it was empty verbiage emasculated by the Slaughterhouse Cases powerful enough to ensure some claptrap about traveling between the states to protest the government But into the 20th Century Harlan the Elder helped midwife the monstrosity which like the tar pit in Br'er Rabbit has left no other facet of Constitutional Law unsullied if not drawn wholly into the morass One of the first things you have to ask yourself when you study Fourteenth Amendment jurisprudence Am I insane? You might also add the uestion Am I an idiot? How do you get Incorporation out of this? How do you get fundamental rights out of this? Seemingly the you know about the Fourteenth Amendment the less you understand Berger's interpretation of the amendment actually stands as something coherent and persuasive The amendment was nothing other than an attempt to constitutionalize the Civil Rights Act of 1866 guaranteeing blacks the basic rights the privileges and immunities enshrined in English common law in other words that neither life liberty or property could be denied from blacks without a fair and eual application of the law And that's about it This interpretation is both conservative given the tremendous leeway showed the Fourteenth Amendment in modern days and radical given the failure of Congress to protect these basic rights in the Jim Crow South Though Berger's reading says nothing about incorporation nothing about integration certainly nothing about sex discrimination and gay rights it does clearly enunciate the standard that the law of the states could no longer treat blacks as second class citizens even if the public still could This is a radical proposition in the best sense that is it ceases to be radical and becomes merely humane in short contemplation The men who passed the Amendment must have also been aware that true reform cannot be founded on shaky principles we must have an idea of where we want to go before a movement forward is progress and the true underpinnings of the Fourteenth Amendment provided a solid cornerstone on which real progress might have been achieved In this sense Berger's book also acts as a counter history of the postwar South one which unlike those modern Sumnerites who itch for total redistribution and revolution might have plausibly been achieved Given the number of life and state altering holdings which have arisen from modern interpretations of the Fourteenth Amendment Roe Casey Baker v Carr Bush v Gore what a rogues' gallery of hackwork it's hard not to wonder how the entire corpus of American law would have been different if the Court and Congress had followed Berger's interpretation It's also hard not to think how the status of blacks could have been improved had this interpretation held Ransom and Sutch's wonderfully titled One Kind of Freedom came to mind as the counter hypothetical on the economic side In conclusion this book is a great historical and legal document excitingly fresh and rigorous to the extreme When our masters on the Court reconvene and inevitably discover a bevy of new rights hidden before our eyes this book will stand as a testament to the idea that language means what it does that history is not wholly malleable in the hands of men and that the law is meant to protect and ennoble us not to confound and exasperate

  3. Candace Kilpinen Candace Kilpinen says:

    Broadened my perspective on 14th Amendment jurisprudence by filling in my gaps of historical and knowledge related to passage of the Civil War Amendments

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