Government By Judiciary: The Transformation of the Fourteenth Amendment, by Raoul Berger
Kanner, Stephen B.
"Government By Judiciary: The Transformation of the Fourteenth Amendment, by Raoul Berger" Now, not the least remarkable thing to consider about this fearsome sense of realism is the time when Johnson was alive. Only a year before the meeting with Boswell, Rousseau had published his...
...But Berger defines the original intention much more narrowly than other strict constructionists...
...The Court is to be bound, not only by the general principles expressed in constitutional provisions, but also by the specific applications of those principles as intended by the framers...
...Under the latter, the Court uses ambiguous terms in the Constitution—due process, equal protection—as convenient touchstones to invoke and legitimize "basic shared national values," the "felt necessities of the time," or concepts of "fundamental fairness...
...It was not long before our modern version appeared...
...Yet, although freedom from the "dead hand of the past" is a straw man Berger often rails at, the common law itself provided elaborate rules to limit the time after death during which an individual may control the disposition and use of his property...
...This theory of a "living constitution" was wiser and more politic...
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...nor deny to any person within its jurisdiction the equal protection of the laws...
...But this proves only that original intent is so difficult to ascertain as to be of little use (true in many cases), or that the Court continues to disguise what it is really doing...
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...He recently completed a clerkship with Judge Joseph T. Sneed of the U.S...
...In Marx, in Freud, in almost every philosopher and thinker who has shaped western attitudes over the past two hundred years (with one or two towering exceptions, suchas Dostoevsky), we find this same overpowering drive to offload the blame for all our guilt, our pain, onto others, onto society, onto our parents, onto political structures, onto our material circumstances...
...or consider the Court's constitutional basis 32 The American Spectator October 1978 for its abortion decisions: "This right of privacy, whether it be found in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy...
...Rather, it is a sophisticated and reasoned analysis of how governmental interference is throttling our largely decentralized, private property-based econJ. Clayburn La Force is Dean of the Graduate School of Management at UCLA...
...Berger's approach would benefit those branches of government or forces in society currently counterposed to the Court's power...
...Professor Thomas Grey of Stanford argues that the framers were imbued with natural-law philosophy—specifically, the notion of a higher law protecting certain natural rights and having precedence over mere positive law...
...and that in many controversies both sides claim to uphold it...
...Is the gap between the Court's decisions and the original intention wrong...
...The growth in the size and power of the federal judiciary is in part a response to the growth in the other branches of government...
...In the famous words of William Gerard Hamilton on that day, "He has made a chasm, which not only nothing can fill up, but which nothing has a tendency to fill up...
...Though written with an urgency born of his extensive experience in the Nixon and Ford administrations, this is no simple diatribe against "Big Government...
...Berger never seems to recognize the enormous differences among statute, will, and constitution, in terms of the objects and numbers of people affected and the time period in which the document is to function...
...From this perspective, it is wrong to seek a tight fit between the Court's decisions and the words of the Constitution detached from any philosophical or moral underpinnings...
...More importantly, the analogy is irrelevant...
...nor shall any State deprive any person of life, liberty, or property without due process of law...
...That is why, when Johnson died, so great was the pulse of vitality which flowed through him, those who were left were stunned...
...Yet, despite this shift, the terms of the debate still derive from the fifteen years of the Warren Court and the liberalizing influence of the legal academic community: For both liberals and conservatives assume the Court should be judged by the policy implications of its decisions...
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...In Simon's view, what distinguishes capitalism from planned economies is, among other things, its complexity...
...The Court is today the last bulwark of the federal system and defender of the rightful prerogatives of citizens acting through their state governments and courts, in an age when "matching grants" and federal welfare turn states and people into dependent clients of federal regulators...
...That research—and phenomenal good timing—are what made his two previous works on impeachment and executive privilege so significant...
...Johnson is dead...
...Berger believes that by destroying the myth that the Court has merely acted to expound pre-existing law and by revealing its value-laden decisionmaking, its ways can be mended and the myth made a reality...
...Before adopting his approach, and overturning our long-standing practices, we may rightfully demand an explanation of the advantages to society of having adopted it a century or thirty years ago...
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...It would be "utterly unrealistic and probably impossible to undo the past in the face of the expectations that the segregation decisions, for example, have aroused in our black citizenry—expectations confirmed by every decent instinct...
...Berger illustrates the gap between the original intention and current constitutional doctrine in his careful analysis of the passage of the Fourteenth Amendment...
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...Berger demonstrates that most of the key congressmen who sponsored the amendment, and the nonradicals in the 39th Congress who passed it, intended to leave matters of suffrage entirely to the states...
...The statement of one leading constitutional scholar, that the amendment embraces an "ideal of racial equality," is one the drafters would surely have choked on...
...It is, Berger concludes, as if the amendment expressly stated that "control of suffrage shall be left to the states...
...And Watergate reminds us of the role of the Court in restraining an increasingly powerful executive...
...Neither judiciary, legislature, nor executive have ever followed Berger's literalist approach to the Constitution...
...But he never really confronts alternative models of interpretation...
...Moreover, argues Simon, ours is not a deliberately constructed system, but a "spontaneous" social order that hasevolved over centuries...
...Seeking to protect "liberty of contract," the Court struck down dozens of legislative schemes for regulation of hours, wages, child labor, working conditions, etc...
...It would be far beyond the capabilities of the human mind to "create" the free enterprise economy by putting individual men and women in their places and instructing each what to do and when to do it...
...In Rousseau and Bentham (indeed, even implicitly in the Declaration of Independence), it was proclaimed that human happiness could be achieved by political means, that the causes of most human ills did not lie within us, but outside us...
...It is my final tribute to Professor Bate's account of this stupendous man that, when I read the pages describing his death, a tear came into my eye...
...Four years before Johnson's death, Jeremy Bentham wrote his Principles of Morals and Legislation (which was eventually to be published in that momentous year, 1789...
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...and both sides rarely stop to consider whether their preoccupation with results can be harmonized with the Court's alleged function—to enStephen B. Kanner is a graduate of Yale College and Yale Law School...
...Yet, whatever the merit of these historical arguments, it is ultimately circular to justify the primacy of the framers' intent—natural law or literalism—by quoting the intent of the framers...
...Thus the source of the one man-one vote decision which required massive reapportionment of state legislatures lies in the values of the justices, not in the Constitution...
...On the eve of the French Revolution and the age of Romanticism, European civilization stood on the verge of one of the most astonishing and fundamental shifts in collective consciousness in history—the keynote of which was to be an almost exact reversal of every truth about human nature and experience which Johnson had fought through to with such remorseless honesty and pain...
...Under the influence of the philosophy of legal realism, associated primarily with Yale Law School in the interwar period, the Court became increasingly sensitive to public opinion, giving weight to the "success" of its decisions as measured by their effects upon government and society and by popular acceptance...
...The enormous growth of other branches of government should raise some doubt as to whether liberty is best served by extending the protections of the Constitution only to those objects specifically referred to by the framers in the debates surrounding enactment...
...The fact that such literalism has never been the rule should cast doubt upon whether it could ever be implemented...
...If there was one belief which was to characterize western civilization with ever increasing force from the time Johnson passed away, it was that most human suffering is caused by external factors...
...Let us go to the next best—there is nobody...
...In Simon's words: The single most awe-inspiring thing about our 34 The American Spectator October 1978...
...The Court's creative energies turned to civil liberties, and scholars soon began to justify its newfound activism...
...The Fourteenth Amendment emerges from Berger's analysis as a half-hearted compromise, giving some but not much protection to blacks, just what the historian might expect from a North which had freed the slaves but still despised them...
...Berger invokes the words of the framers to show that they intended interpretation based narrowly upon their meaning...
...Obviously, behind all the plod and repetition of his prose, it was really this which inspired Bate too, as when he argues in his introduction that, at the very deepest level, we respond to the life of Johnson because it is like a parable of what all our lives might be: the story of a man who, by courage, by laughter, and against seemingly insuperable odds, finally wins through to that "triumph of honesty to experience that all of us prize"—perhaps the only prize worth winning on this earth...
...His strength lies in meticulous historical research...
...Its history can be traced to the English natural-law tradition, evidenced in decisions as early as the seventeenth century...
...This is just what the inquiry must be...
...and over the years, the decisions of the Court have not favored any one ideological position...
...Yet he curiously refuses to reverse the leading decisions of the past thirty years, thereby making a judgment about morality or political wisdom which overrides his constitutional autopilot...
...Jack Kemp THE WAY THE WORLD WORKS How Economies Fail— and Succeed JUDE WANINSKI $12.95 at bookstores, or direct from 10 E. 53rd St., New York 10022 BASIC BOOKS, INC., Changing Your Address...
...In this pursuit-, the Court often ignores what the framers intended or even twists their meaning through inaccurate and casual history...
...According to Grey, the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") could mean that there remain "unwritten but *still binding principles of higher law...
...Yet no matter how much we, like our chastened Court, may protest our obedience to the framers, our decision to adopt Berger's approach would be a decision by the current generation to favor certain values over others...
...Ludwig van Beethoven was only fourteen when Johnson died, but over the next forty years he was to live out an inner life in many ways astonishingly similar to Johnson's, except that his music has filled civilization with an even greater wonder and awe than it was given even Johnson to inspire...
...Literal interpretation, we are told, is the best method of preventing tyranny and maintaining stable government...
...BOOK REVIEW Government By Judiciary: The Transformation of the Fourteenth Amendment Raoul Berger / Harvard University Press / $15.00 Stephen B. Kanner Er decades the conservative press attacked the decisions of the Warren Court, but in the past few years the tide has turned...
...Almost in passing, Berger admits this need for some type of moral or pragmatic justification...
...But on this point there is respectable opinion against Berger...
...A single-minded attack upon the leading con, stitutional decisions of the past thirty years, Government By Judiciary compels us—particularly those of us who accept any of those decisions—to examine the central question: Flow should the Supreme Court interpret the Constitution...
...BOOK REVIEW A Time for Truth William E. Simon / Reader's Digest Press / $12.50 J . Clayburn La Force An instant best-seller, this book by former Treasury Secretary William Simon delivers a message of grave importance to the American public: We are losing our individual liberties to a newly-emerging authoritarian state...
...According to Berger, the Court should look to the text of the Constitution and the record of the Convention or Congress which proposed it, ascertain the "original intention," and enforce it...
...omy and, in consequence, endangering our political and economic freedoms...
...In contrast, American capitalism permits a relatively rich existence—and a degree of individual liberty unmatched by any other economic system...
...To follow Berger's reasoning, however, there is no room in constitutional adjudication for decency or any thought of the social implications of a decision...
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...Equally crucial, he devotes ten meager pages out of four hundred to tell us "Why the Original Intention...
...Contrary to a widespread opinion, the supremacy of this approach is not the work of the Warren Court...
...We are told that the Court itself has never abandoned its insistence upon original intention...
...Should be read by every opinion maker, member of congress, and world leader:' —Rep...
...The threshold question is how we should go about choosing a method of interpretation...
...Nor was school desegregation anobject of the amendment: The same Congress that passed the amendment countenanced segregated schools in the District of Columbia, and most of the ratifying states maintained segregated schools...
...When the lesser men of these past twocenturies have died—the Napoleons, the Hitlers—they have left behind (because they externalized their battles) only a dark, mysterious void...
...In either case, a frank recognition and acceptance of the Court's implementation of values is as likely a remedy as is a renewed search for intent...
...In the age of Rousseau ("a rascal who ought to be hunted out of society") and Voltaire ("Why, Sir, it is difficult to settle the proportion of iniquity between them"), Johnson stood in precise and mighty opposition to a tendency which was about to sweep the world on a scale such as he would never have conceived possible...
...force the Constitution, to announce the pre-existing law...
...Compared to the simple structure of the centrally-planned economy, ours is so complex as to be downright mysterious...
...This constitutionalization of laissez-faire economics ended with a change in Court membership following FDR's Court-packing attempt in 1937...
...and his reasoning in that chapter is frustrating...
...One version—the theory of "substantive due process"—dominated constitutional decisionmaking from the late nineteenth century until the New Deal...
...More importantly, structural reasons which did not exist in 1789 or 1866 now support a judiciary which is activist on certain fronts...
...Arguably the Constitution has survived because men practical and wise have not neglected the moral and political implications of their decisions...
...Once this is recognized, Berger's book begins to disintegrate...
...Similarly, Walter Berns and Irving Kristol have argued that the Founding Fathers had a clear conception of certain essential prerequisites for the successful functioning of the Republic—primarily a moral, vigilant citizenry...
...Under this view, the Constitution codifies some of those rights but can never completely embody the higher law...
...As one contemplates this half-deaf, irritable, tortured, intensely moral figure, his sufferings shot through with rough humor, with his often rather pathetic attempts at loving kindness, and above all his supreme conviction that ultimately man has to fight the only battles which count within himself, one may be reminded of another giant of_ that time who went on even more gloriously to give the lie in the name of an ultimate sense of reality to all the immature fantasies of his age...
...The Constitution is thought to be sufficiently unspecific to permit the judiciary to elucidate changes over time in the content of basic rights...
...Jude Wanniski, Associate Editor of the Wall Street Journal, demonstrates that taxes can be cut without cutting social spending in his timely rationale for the "Proposition 13" movement...
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...The only way a man can rise to truly superhuman size is through the battle within, to find his true, inner self...
...In The First Amendment and the Future of American Democracy, Berns demonstrated the importance of such a democratic theory in the framing of the Constitution, and criticizes decisions dealing with regulation of speech, press, and church-state relations for their abandonment of the broader philosophical basis of the First Amendment...
...Indeed, the economic interconnections among individuals and organizations, skills, knowledge, and products are beyond any individual's comprehension, let alone control...
...Only a year before the meeting with Boswell, Rousseau had published his Social Contract...
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...Needless to say, this procedure would invalidate the decisions on school desegregation, reapportionment,and the rights of criminal suspects that are the legacy of the modern Supreme Court...
...But if the Court no longer attempted to impose Herbert Spencer's economics upon a society drifting toward socialism, its decisions still rested on extra-constitutional values...
...I knew again what Gorky meant when he said of Tolstoy, "I am not an orphan on this earth so long as this man lives on it...
...Berger would impose on us a governmental automatism—"value-free" decisionmaking in which the answers to today's questions are found in the historical record...
...Consider the constitutional grounding the Court provides for its "right to travel": "the Court has no occasion to ascribe the source of this right to...a particular constitutional provision...
...Next Berger tells us that "effectuation of the draftsman's intention is a longstanding rule of interpretation in the construction of all documents—wills, contracts, statutes...
...As Robert Cover has written, the method of interpretation we choose constitutes a judgment about our political present and future and about alternative theories of judicial activity which will best serve it....It is for us, not the framers, to decide whether the end of liberty is best served by entrusting to judges a major role in defining our governing political ideas and in measuring the activity of the primary actors in majoritarian politics against that ideology...
...In his latest book, Raoul Berger attempts to reclaim the terms of this debate...
...The anti-Court literature now appears in the pages of the Nation, Saturday Review, and the New Republic, excoriating the Court for getting tough with criminals, restricting forced busing, and denying access to federal courts...
...That amendment provides, in part, that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...
...Payment enclosed ^ Please bill me (please print) Name Address City State Zip Date of change X71 The American Spectator October 1978 33 alleged to justify the theories he opposes—and proceeds to demolish them...
...Man can indeed "create" an economic system, but because of his intellectual limitations it would be a nightmare of centralization providing a stark and tyrannical social and economic existence...
...And an 18th-century textbook which states this rule proves that the framers agreed...
...Far better than starting the charade again, let us thank Berger and enter freely into the debate over values...
...Rather, he sets up straw men—key quotations The manifesto of the taxpayers' revolt...
...Berger's approach—what Philip Kurland calls the "Delphic Oracle" view of the Court as expositor of pre-existing law—contrasts sharply with the "Platonic Guardian" view...
Vol. 11 • October 1978 • No. 10
