page_title: Government by Judiciary
section_title: Summary
hierarchical_section_title: Government by Judiciary / Summary
caption_attribution_description: English: Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., USA.
context_page_description: Government by Judiciary is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny. Berger argues that the U.S. Supreme Court is not actually empowered to rewrite the U.S. Constitution--including under the guise of interpretation--and that thus the U.S. Supreme Court has consistently overstepped its designated authority when it used its powers of interpretation to de facto rewrite the U.S. Constitution in order to reshape it more to its own liking.
context_section_description: In this book, Berger argues that the Fourteenth Amendment should be interpreted based on the original intent of its draftsmen. Berger argues that this is how the U.S. Constitution was historically interpreted as well as how the draftsmen of the 14th Amendment intended for this Amendment to be interpreted. Berger also argues that the sole purpose of the Fourteenth Amendment was to constitutionalize the Civil Rights Act of 1866. (Berger rejects the use of statements by critics of the Fourteenth Amendment to advance a broad reading of the Fourteenth Amendment by arguing that these statements were made to make the Fourteenth Amendment look terrifying in order to increase the odds that this Amendment be rejected and defeated.) Specifically, the purpose of that Act was to tear down the Black Codes in the post-Civil War Southern U.S. and to give the freedmen basic rights such as freedom of contract, the right to sue and be sued, to travel and work wherever they please, and to buy, sell, and own property. Berger argues that, in the view of its draftsmen, the 1866 Civil Rights Act did not require U.S. states to allow African-Americans to serve on juries, to vote, to intermarry with White people, or to go to the same schools that White people went to. Thus, Berger argues that numerous U.S. Supreme Court decisions based on the Fourteenth Amendment have been wrongly decided since they were decided contrary to the original intent of the Fourteenth Amendment. These decisions include the 1880 case Strauder v. West Virginia (which stated that African-Americans cannot be prohibited from serving on juries), the 1954 case Brown v. Board of Education (which struck down school segregation), the 1960s one person, one vote cases such as Reynolds v. Sims, and the 1967 case Loving v. Virginia (which struck down bans on interracial marriage).
  Berger also criticizes the argument made by Alexander Bickel, William Van Alstyne, and others that the 14th Amendment's language was meant to be open-ended in order to give future generations a large amount of discretion in determining how to apply the 14th Amendment's principles to their own times. Berger argues that the "open-ended language" theory lacks any historical basis whatsoever and that, in any case, any intentions that existed but were not disclosed to the American people before they ratified a constitutional amendment certainly have no value and shouldn't be used as a basis for interpreting this amendment. In Berger's view, the ideas of substantive due process as well as the incorporation of the Bill of Rights (against the states) are both contrary to the intent of the framers of the Fourteenth Amendment. In regards to incorporation of the Bill of Rights, Berger argues that the views of John Bingham and Jacob Howard in regards to this issue were unorthodox (Bingham and Howard both stated that the 14th Amendment would apply the first eight amendments in the Bill of Rights against the states) and that most Republicans in the 39th United States Congress (which proposed and passed the 14th Amendment) did not share Bingham's and Howard's views on this issue. As support for his position, Berger points out that none of the Republicans who spoke about the 14th Amendment on the campaign trail leading up to the 1866 elections ever said or even suggested that the 14th Amendment would apply any of the amendments in the Bill of Rights against the states and that court rulings shortly after the 14th Amendment's ratification in 1868 continued to hold that the Bill of Rights was inapplicable against US states (as opposed to the US federal government--against which the Bill of Rights was always held to be applicable). Finally, Berger defends the holding in the notorious 1896 case Plessy v. Ferguson and argues that the reason that "Plessy has become a symbol of evil[] ... is because we impose 'upon the past a creature of our own imagining' instead of looking to 'contemporaries of the events we are studying.'" Berger argues that "Plessy merely reiterated what an array of courts had been holding for fifty years"--st
caption: The U.S. Supreme Court building. In his book, Berger argued that the Supreme Court went beyond its constitutional authority in rewriting the U.S. Constitution and especially the 14th Amendment.
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