Government by Judiciary. Raoul Berger

to be sure, has steadily eroded those reserved powers, but this simply represents another of the usurpations that bestrew the path of the Court. But the historian, looking to the Constitution itself, may not be blind to the fact that, in the words of Willard Hurst, the reservation “represented a political bargain, key terms of which assumed the continuing vitality of the states as prime law makers in most affairs.” ⁵⁸ No trace of an intention by the Fourteenth Amendment to encroach on State control—for example, of suffrage and segregation—is to be found in the records of the 39th Congress. A mass of evidence is to the contrary, and, as will appear, the attachment of the framers to State sovereignty played a major role in restricting the scope of the Amendment. “ [W]e ought to remember,” Justice Holmes said, “the greater caution shown by the Constitution in limiting the power of the States, and should be slow to construe the [due process] clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion the validity of whatever laws the States may pass.” ⁵⁹ The history of the Amendment buttresses the flat statement that no such jurisdiction was conferred.

“What, after all,” asked Wallace Mendelson, “are the privileges and immunities of United States citizenship? What process is ‘due’ in what circumstances? and what is ‘equal protection’?” ⁶⁰ Study of what the terms meant to the framers indicates that there was no mystery. The three clauses of §1 were three facets of one and the same concern: to insure that there would be no discrimination against the freedmen in respect of “fundamental rights,” which had clearly understood and narrow compass. Roughly speaking, the substantive rights were identified by the privileges or immunities clause; the equal protection clause was to bar legislative discrimination with respect to those rights; and the judicial machinery to secure them was to be supplied by nondiscriminatory due process of the several States. Charles Sumner summarized these radical goals: let the Negro have “the shield of impartial laws. Let him be heard in court.” ⁶¹ That shield, it will be shown, was expressed in “equal protection of the laws; access to protection by the courts found expression in “due process of law.” The framers, it needs to be said at once, had no thought of creating unfamiliar rights of unknown, far-reaching extent by use of the words “equal protection” and “due process.” Instead, they meant to secure familiar, “fundamental rights,” and only those, and to guard them as of yore against deprivation except by (1) a nondiscriminatory law, and (2) the established judicial procedure of the State.

Supplementary Note on the Introduction

It is the thesis of this book that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power. When Chief Justice Marshall stated that the function of the legislature is to make the law, that of the judiciary to interpret it,¹ he echoed Francis Bacon’s admonition two hundred years earlier.² Much less are judges authorized to revise the Constitution, for as Justice Black, deriding the notion that the Court was meant to keep the Constitution “in tune with the times,” stated, “The Constitution makers knew the need for change and provided for it” by the amendment process of Article V,³ whereby the people reserved unto themselves the right to change the Constitution. Having created a prepotent Congress, being well aware of the greedy expansiveness of power, and knowing that power can be malign as well as benign, the Founders designed the judiciary to keep Congress within its prescribed bounds,⁴ what James Bradley Thayer and Learned Hand later called “policing” the constitutional boundaries.⁵ Within those boundaries, stated Justice James Iredell, one of the ablest of the Founders, the legislature was to be free of judicial interference.⁶

Unlike the academicians’ current infatuation with a revisory judiciary,⁷ the Founders had a “profound fear of judicial independence and discretion.” ⁸ They were influenced by the English Puritans’ fear that “the laws’ meaning could be twisted by means of judicial construction”; they feared the judges’ “imposition of their personal views.” ⁹ An important brake on such arrogation was the rule that a document is to be construed in light of the draftsmen’s explanation of what they meant to accomplish,¹⁰ the so-called original intention. Jefferson and Madison attached great weight to the rule;¹¹ and Chief Justice Marshall declared that he could cite from the common law “the most complete evidence that the intention is the most sacred rule of interpretation.” ¹² Here law and common sense coincide. Who better knows what the writer means than the writer himself?¹³ John Selden, the preeminent seventeenth-century scholar, stated, “A Man’s writing has but one true sense, which is that which the Author meant when he writ it.” ¹⁴ Such were the views of Hobbes and Locke.¹⁵ To maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself. To recapitulate, antiactivists (originalists) maintain that judges are not authorized to revise the Constitution¹⁶ and that it is to be construed in light of the Founders’ explanations of what they meant to accomplish, no more, no less.

Leading activists Michael Perry and Paul Brest observe that no activist has come up with a satisfactory antioriginalist theory.¹⁷ There are as many theories as activist writers. Indeed, Brest pleads with academe “simply to acknowledge that most of our writings are not political theory but advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good” —result-oriented propaganda.¹⁸ In their zeal to ameliorate social injustice, academicians undermine the constitutionalism that undergirds our democratic system.¹⁹ Their defense of the Justices’ substitution of their own meaning for that of the Founders displaces the choices made by the people in conventions that ratified the Constitution, and it violates the basic principle of government by consent of the governed. The people, said James Iredell, “have chosen to be governed under such and such principles. They have not chosen to be governed or proposed to submit upon any other.” ²⁰ Academe has forgotten Cardozo’s wise caution: the judges’ “individual sense of justice . . . might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” ²¹

When this book appeared in 1977, I anticipated that it would ruffle academic feathers, for it stood athwart the complacent assumption that constitutional limitations²² must yield to beneficial results, a result-oriented jurisprudence that is a euphemism for the notion that the end justifies the means.²³ The flood of criticism—often ad hominem—surpassed my expectations.²⁴ Scarcely a month passes without another “refutation,” ²⁵ testimony that the corpse simply will not stay buried. Almost all activist critics turn their back on discrepant evidence; they simply will not examine, for example, my detailed demonstration that “privileges or immunities” had become words of art having a limited compass.²⁶

Consider the “one man-one vote” doctrine. Section 2 of the Fourteenth Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that the Amendment “leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.” ²⁷ Senator Jacob Howard, to whom fell the task of explaining the amendment because of Fessenden’s illness, said, “the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.” ²⁸ It was this “gap” which the Fifteenth Amendment was designed to fill.²⁹ Plainly the “one man-one vote” doctrine derogates from the exclusive control of suffrage that was left to the States.³⁰

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