Government by Judiciary. Raoul Berger

      

      GOVERNMENT BY JUDICIARY

      This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

      The cuneiform inscription that serves as our logo and as a design element in Liberty Fund books is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.

      © 1997 by Liberty Fund, Inc.

      This eBook edition published in 2013.

      eBook ISBNs:

       Kindle 978-1-61487-085-2

       E-PUB 978-1-61487-173-6

       www.libertyfund.org

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      All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

       —FOURTEENTH AMENDMENT, §1

      Nullius in Verbo

      —Motto of the Royal Society, London

      Take nobody’s word for it; see for yourself

       Contents

Foreword

Preface to the Second Edition

Acknowledgments

Abbreviations

PART I

1. Introduction

Supplementary Note on the Introduction

2. “Privileges or Immunities”

Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights

3. The “Privileges or Immunities of a Citizen of the United States”

4. Negro Suffrage Was Excluded

Supplementary Note on Suffrage

5. Reapportionment

6. The “Open-Ended” Phraseology Theory

7. Segregated Schools

Supplementary Note on Segregated Schools

8. Incorporation of the Bill of Rights in the Fourteenth Amendment

Supplementary Note on Incorporation

       9. Opposition Statements Examined

       10. “Equal Protection of the Laws”

       11. “Due Process of Law”

       12. Section Five: “Congress Shall Enforce”

       13. Incorporation of Abolitionist Theory in Section One

       Supplementary Note on Abolitionist Influence

       PART II

       14. From Natural Law to Libertarian Due Process

       Supplementary Note on Natural Law and the Constitution

       15. “The Rule of Law”

       16. The Judiciary Was Excluded from Policymaking

       Supplementary Note on Exclusion of the Judiciary

       17. The Turnabout of the Libertarians

       18. Liberals and the Burger Court

       19. The Legitimacy of Judicial Review

       Supplementary Note on the Role of the Court

       20. Why the “Original Intention”?

       Supplementary Note on Original Intention

       21. Arguments for Judicial Power of Revision

       22. “Trial by Jury”: Six or Twelve Jurors?

       23. Conclusion

       Supplementary Note on the Conclusion

       Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent

       Appendix B: Judicial Administration of Local Matters

       The Writings of Raoul Berger

       Bibliography

       Index of Cases

       General Index

Foreword

      Raoul Berger’s original intention, if I may use that phrase in a different way than he does, was not to become a great constitutional historian. Indeed, his work as a scholar is actually the fourth (or fifth, depending on how you count) of the careers he has held during a long and illustrious lifetime.

      His first love was and continues to be music. As a youth he studied the violin in New York and Berlin and then went on to make a number of highly praised concert tours, appear as a soloist with the Cleveland Symphony, and serve as second concertmaster with the Cincinnati Symphony Orchestra and first violinist of the Cincinnati String Quartet. But it was difficult in the