“It is easier to make certain things legal than to make them legitimate.”

The evisceration of the federal system by the Supreme Court during the last few decades—indeed, most of the modem malfeasance of that august body—has been accomplished largely through the instrumentality of the Fourteenth Amendment. This sorry tale, from the adoption of the amendment to recent court decisions, has been chronicled by a number of scholars, the doyen of whom is Raoul Berger. Three of Berger’s works are indispensable and indeed one would think definitive: Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), Selected Writings on the Constitution (1987), and Federalism: The Founders’ Design (1987). A new challenge to Berger’s scholarship has recently appeared, however, forcing him to rise to the occasion once again.

Before dealing with the challenge and with Berger’s response, it will be well to review the amendment and its history. The crucial phraseology comes in its first section, which begins by overturning the Dred Scott decision. That is, it grants national and state citizenship to all persons (including blacks, contrary to the Dred Scott ruling) “born or naturalized in the United States.” Then the section forbids three kinds of state action: abridging the “privileges or immunities” of citizens, depriving any person of life, liberty, or property without “due process of law,” and denying any person with the state’s jurisdiction the Forrest McDonald is a professor of history at the University of Alabama in Tuscaloosa. “equal protection of the laws.”

At the time of the amendment’s adoption, there was nothing arcane about the three key clauses. The privileges or immunities clause was taken directly from Article IV, Section 2 of the main body of the Constitution, which in turn had been lifted from Article IV of the Articles of Confederation. The clause has rarely been invoked in adjudication, probably because its content was widely understood to comprehend the same “natural” rights—to life, liberty, and property—that are protected by the due process clause. The language of that clause was taken from the Fifth Amendment, which like the other parts of the Bill of Rights applied only to the federal government. (Interestingly, the Fourteenth did not include the Fifth’s requirement that “just compensation” be paid when private property is taken for public use.) The meaning of “due process” was common currency; it referred to procedures followed in courts of justice, as they had originated in the common law of England and evolved in the courts of the several states. The equal protection clause was new phraseology, but its meaning was as clear as language can be.

Nor can there be serious doubt as to what the framers and ratifiers of the amendment intended by it. Several Southern states had enacted Black Codes that virtually nullified the Thirteenth Amendment, which had freed the slaves. The purpose of the Fourteenth was to prevent such legislation and to insure that freedmen should have the same legal rights as whites. The amendment emphatically did not cover the right to vote, which was the subject of the Fifteenth Amendment. Obviously it also did not prohibit de jure segregation, inasmuch as the same Congress that passed the amendment established a segregated public school system in the District of Columbia, and nearly every legislature that ratified it had done or was soon to do the same.

Despite the clarity and general understanding of the amendment, however, the ink had scarcely dried on the instrument before the Supreme Court began to transform it. On the one hand, it refused to intercede as state after state stripped Negroes of their civil rights. On the other, the Court found in the amendment justification for striking down the efforts of states to regulate business corporations.

During the 1920’s the Court found something else in the amendment, though for a time the discovery had only minimal consequences. In the case of Gitlow v. New York (1925), a radical socialist had been convicted of criminal anarchy for publishing tracts that violated state law by advocating the overthrow of government. The Supreme Court announced, for the first time, that “Freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due-process clause of the Fourteenth Amendment”—and yet, construing the right of free speech narrowly, it allowed the conviction to stand. Twelve years later the Court reiterated the doctrine, declaring that certain “fundamental” rights, central to a regime of “ordered liberty,” were protected by the due-process clause, but in that particular case it held that immunity to double jeopardy was not among those rights.

A radical enlargement of the doctrine was proposed in 1947, when Justice Hugo Black claimed in a dissenting opinion that the legislative history of the Fourteenth Amendment proved that its framers intended it to “incorporate” the Bill of Rights, which is to say make the first eight amendments applicable to the states as well as the federal government. The claim was explicitly rejected by the other justices and discredited in studies by various constitutional scholars. But restraint, reason, federalism, and the very idea that legislative intent means anything were soon to breathe their last.

Though few people recognized it as such at the time, their death knell was sounded in the five desegregation cases known collectively as Brown v. School Board. When the cases were first argued before the Supreme Court in 1952, the justices were sorely divided. Chief Justice Fred Vinson, uncertain in his own mind but leaning toward upholding the “separate but equal” doctrine that had prevailed for nearly sixty years, wanted to hear more fully what the framers of the Fourteenth Amendment had intended, and so counsel on both sides were ordered to do the necessary research and re-argue the case a year later. That was embarrassing to the NAACP’s case, for the historical record clearly favored the continuation of segregation. Indeed, as one member of the NAACP team (the historian Alfred Kelly) admitted years later, the team found it expedient to falsify and misrepresent evidence in order to present its case.

As it happened, the historical record did not matter, for Vinson died (“an act of God,” Felix Frankfurter gleefully declared), and he was replaced by Earl Warren—who was interested neither in law nor in history, only in results. Thus it was that the decision came to be based not on the record or the language of the amendment or upon other relevant constitutional provisions, but (as Warren was candid to admit) upon the testimony of a social psychologist that accorded with Warren’s personal convictions and ideas of social justice.

Having thus crossed the Rubicon—I use the metaphor deliberately, for that was the beginning of an age of judicial Caesarism—the Court proceeded to render a succession of revolutionary decisions. Quite in addition to moving from ruling that race must not be used as a factor in assigning children to schools to ruling in the early 1970’s that race must be the principal factor, the Court began a process of “selective incorporation” of the Bill of Rights to justify its decisions in regard to school prayer, criminal rights, legislative reapportionment, pornography, abortion, and a host of other subjects. Each of the decisions eroded traditional communitarian values, and each was rendered at the expense of the constitutional authority of state and local governments to regulate their internal affairs.

Though the direction of its rulings was consistent, however, the Court lacked a consistent rationale for what it was doing until 1970, and the rationale it then advanced had an interesting history of its own. When Brown v. School Board was being adjudicated. Justice Frankfurter had had his law clerk, Alexander Bickel, carefully study the history of the Fourteenth Amendment, so that he would know independently of the arguments of counsel just what the intent of the framers had been. Bickel did an exhaustive research job and submitted a lengthy memorandum, the conclusion of which was that it was impossible to use the amendment to warrant desegregation. After the Court had done so anyway, Bickel published his memorandum, but with a curious speculative twist. He pointed out that a few of the Radicals in the 1866 Congress had wanted enfranchisement of blacks, integration, social equality, and various other things that were politically unattainable. It might be, Bickel surmised, that they helped engineer the phraseology of the amendment so as to make it “open ended,” thus facilitating a more enlightened interpretation in the future. There was no evidence to support this surmise and a great deal of evidence to the contrary. Nevertheless, in 1970 Justice William Brennan worked the idea into a decision. Justice Black, seeing the possibilities that this doctrine raised, declared that the open-ended theory made “the history of the Fourteenth Amendment . . . irrelevant.”

What it all comes down to is that the Supreme Court could hold in 1989, despite its putatively conservative majority, that when the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and the Fourteenth Amendment says that no state shall “deprive any person of life, liberty, or property without due process of law,” the plain import of those words is that it is unconstitutional to open high-school football games in Georgia with a prayer.

It was probably the endorsement of the open-ended theory that inspired Berger—though already an elder statesman among constitutional scholars—to undertake the prodigious research that underlay Government by Judiciary and many of the essays republished in his Selected Writings on the Constitution. His work was herculean, brilliant, and irrefutable.

Routed in the arena of serious debate, champions of judicial activism fell back upon a tactic that is characteristic of the modern left, namely a resort to obscurantism. Specifically, they developed the audacious and grotesque doctrine of “non-interpretivism,” which postulates that the intentions of the framers of either the Constitution or the Fourteenth Amendment are unknowable, that although the language of constitutions remains the same the meaning of the words changes over time, and therefore that judges are licensed to fashion constitutional law without finding justification within “the four corners of the Constitution.” The Supreme Court was thereby transformed from a supposed interpreter and defender of the written Constitution into an oracle of its spirit. Non-interpretivism swept the law schools and law reviews; by the early 1980’s, as Robert Bork pointed out, only a handful of constitutional law professors at major institutions still defended interpretivism, and Ronald Reagan appointed most of them to the federal bench.

Non-interpretivism was a tenuous position to be holding, however. It was safe only so long as it was confined to bench and bar and academy, which is to say, as long as the American public could be deceived into believing that it was still the Constitution that the Supreme Court was expounding. Friends of constitutional government repeatedly exposed the deception, and they reached a steadily widening audience. The issue surfaced noisily in 1986 with the publicized exchange between Attorney General Edwin Meese and Justice Brennan. It was fear that the Court might return to constitutionalism that underlay the savaging of Judge Bork in 1987 by the civil rights establishment, radical feminists, and civil libertarian ideologues.

Amidst that dramatically escalating confrontation, an ardent activist named Michael Curtis reversed the field by publishing a book purporting to prove that the framers of the Fourteenth Amendment had, after all, intended to incorporate the Bill of Rights, and that their intention must be binding. That brings us back to where we began, with Raoul Berger’s latest book. Curtis’s argument is turgid, garbled, convoluted, and self-contradictory. And yet Berger could not let it go unanswered, lest it be seized as an excuse for continued judicial usurpations. Accordingly, the maestro was moved once more to take up his pen.

There is not much to say about the book itself. It is utterly devastating. In any other context it would be regarded as overkill, roughly comparable to shooting rabbits with a cannon. Specialists may find it repetitive and even a bit tedious, though they cannot but marvel at Berger’s mastery of the subject. The less initiated will find it a good quick coverage of the controversy, since it is a fairly small book and is quite readable despite the complexities involved. Most importantly, advocates of judicial activism—whether of the incorporationist variety, the noninterpretivist, or some other—will have to devise an alternative rationale or give up the chase. Berger has defeated them at every turn. 


[The Fourteenth Amendment and the Bill of Rights, by Raoul Berger (Norman and London: University of Oklahoma Press) 169 pp., $18.95]