Tuesday, January 9, 2018

Government by Judiciary


A review of Government by Judiciary: The Transformation of the Fourteenth Amendment by Raoul Berger (Second Edition; Indianapolis: Liberty Fund, 1997). Also available online.

Raoul Berger was a legal historian who did not fear challenging academic consensus. His 1977 contrarian work Government by Judiciary argued that the Supreme Court radically departed from the original intent of the Fourteenth Amendment, citing extensively from the historical record in support of his thesis. The first publication generated significant controversy within the legal academy, yet Berger persisted in responding to his critics. This resulted in a second edition in 1997 with “supplementary notes” of Berger’s responses at the end of each chapter.

Berger shows that the Supreme Court’s change in constitutional interpretation in the 20th century had its roots in the Fourteenth Amendment, one of the Reconstruction amendments following the War Between the States (1861–1865). The Southern states were required to ratify the Fourteenth Amendment in order to re-enter the Union (which raises questions about the legitimacy of the amendment).

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