GOVERNMENT BY JUDICIARY

by Raoul Berger

Law

Genres: Law, History, Nonfiction, Politics, Justice, American History

578 pages, Hardcover

First published January 1, 1977

Reviews

[Gonzo · Rating 5 out of 5]

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 question, Am I an idiot? How do you get Incorporation out of this? How do you get fundamental rights out of this? Seemingly the more 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 equal 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.

[Frank Stein · Rating 3 out of 5]

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 antiquated 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," "Equal Protection of the Laws" and "Due Process of Law" mean no more than that the U.S. 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 itself.

The 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, more 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 amendment.

Still, the level of detail here is unequaled 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 "equal protection under law" meant only that existing laws operated equally 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 unequal 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" rights.

Berger 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 idea.

This 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.

[Brian · Rating 3 out of 5]

Although I disagree with a lot of points this book makes, maybe even most, it is nonetheless a very eye-opening perspective on the Fourteenth amendment and its relationship with incorporation and federalism. Also incredibly well-written and thoroughly researched. Overall a great argument for orginalism and judicial restraint, plus case studies of how social progress can sometimes be fatal when pushed through jurisprudence instead of the political process.

My complaint would be: the book sounds like a long rant and a refutation rather than an independent work by itself, yet Berger doesn’t spend enough time to address fundamental philosophical differences that separate his argument from the other side.

[Candace · Rating 5 out of 5]

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