Government by Judiciary. Raoul Berger

tour of the historical sources instead of starting from Brown, in short, beginning with the end, the fait accompli,³² for Brown had no popular mandate. Brown, wrote Bruce Ackerman, another advocate of activism, “did not come at [a moment] when a mobilized citizenry was demanding a fundamental change in our fundamental law.” ³³ The “real significance” of Brown, he opines, “lies elsewhere, in the Court’s courage in confronting modern Americans with a moral and political agenda that calls upon them to heed the voice of their better selves.” ³⁴ Put baldly, the Court had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.³⁵

Contrast a few undeniable facts. Congress had “permitted segregated schools in the District of Columbia from 1864 onward”;³⁶ and Senator Charles Sumner vainly fought “to abolish segregated Negro schools in the District of Columbia.” ³⁷ How can it be maintained that Congress, after steadfastly refusing to abolish segregated schools in the District, over which it had plenary control, would cram desegregation down the throats of the States? “Negroes were barred from public schools of the North,” wrote neoabolitionist Howard Jay Graham, and were “still widely regarded as ‘racially inferior’ and ‘incapable of education.’ ” ³⁸ Had the framers proposed to bar segregated schools in the North, such interference with state control of internal affairs would have imperiled enactment and adoption of the Fourteenth Amendment.³⁹ Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s (chairman of the House Judiciary Committee) assurance that the parallel Civil Rights Bill—regarded as “identical” with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all “children shall attend the same schools.” ⁴⁰ Prominent academicians, among them leading activists, recognize that segregation was left untouched by the Fourteenth Amendment.⁴¹

Compare with such incontrovertible facts the imaginary conversation the leading activist theoretician, Ronald Dworkin, held with a framer of the Fourteenth Amendment about segregation: “I don’t know what the right answer is to the question of what we’ve done . . . Nor do I, as it happens, have any particular preferences myself, either way, about segregated schools. I haven’t thought much about that either.” ⁴² To change existing practices, particularly in the internal zone left to the States, the federal draftsmen minimally must exhibit a purpose to do so.⁴³ Ignorance of, or indifference to, such practices does not spell a purpose to alter them. Dworkin’s imaginary framer must have lived in an airtight cocoon to be oblivious to an issue that reached to the very wellsprings of the pervasive racism.⁴⁴ With William James, we should worry about “the presumptuous arrogance of theories that ignore, even disdain, the concreteness of mere fact.” ⁴⁵ Activist criticism of originalism is generally akin to Dworkin’s reverie: fantasizing opposed to concrete fact. Of earlier criticism Lord (Max) Beloff, an Oxford emeritus and longtime student of American constitutionalism, wrote in a review of my book in the Times of London, “The quite extraordinary contortions that have gone into proving the contrary make sad reading for those impressed by the high quality of American legal-historical scholarship.” ⁴⁶

I came to my study of the Fourteenth Amendment in the service of no other cause than the integrity of constitutional construction. For that purpose I sought to ascertain what the framers sought to accomplish, being without preconceptions as to what the Amendment ought to mean.⁴⁷ The Constitution, remarked Paul Brest, “lies at the core” of our “civil religion”;⁴⁸ until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by “Platonic Guardians” who often are creatures of political accident, virtually irremovable and irreversible. Activist fulminations have not shaken the hope, in the words of Samuel Johnson, that “the most obdurate incredulity may be shamed or silenced by facts.” ⁴⁹ The facts will speak for themselves long after the present controversialists are gone.

      * T. H. Huxley, Man’s Place in Nature (1863), quoted in Homer W. Smith, Man and His Gods 372 (1953).

      1. Reynolds v. Sims, 377 U.S. 533, 591 (1964).

      2. Felix Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 229 (1955).

      3. For example, Anthony Lewis hailed the Warren Court as the “keeper of the national conscience,” in “Historical Change in the Supreme Court,” The New York Times Magazine, June 17, 1962, at 7, reprinted in Supreme Court Under Earl Warren 73, 79, 81 (L. Levy ed. 1972). See also A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 686, 689 (1960).

      4. Chief Justice Marshall stated in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.” “The theory of our governments,” said Justice Samuel Miller, “is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.” Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 663 (1874). “ [W]ritten constitutions,” and Justice Stanley Matthews, “were limitations upon all the powers of government, legislative as well as executive and judicial.” Hurtado v. California, 110 U.S. 516, 531–532 (1884).

      5. In The Constitution of the United States (1922), Beck compared “the work of the Supreme Court to that of a ‘continuous constitutional convention’ which adapts the original charter by reinterpretation.” Quoted in Leonard W. Levy, Judgments: Essays in American Constitutional History 18 (1972). In his recent critique of the “Nixon Court,” Levy states that the “Court is and must be for all practical purposes a ‘continuous constitutional convention’ in the sense that it must keep updating the original charter by reinterpretation.” L. Levy, Against the Law 29, 30 (1974). “Adaptation” and “reinterpretation” are euphemisms for “revision” or “rewriting” the Constitution, the function of a constitutional convention, not the Court. See Louis Lusky, By What Right? 21 (1975); Louis Henkin, “Some Reflections on Current Constitutional Controversies,” 109 U. Pa. L. Rev. 637, 658–659 (1961).

      Solicitor General Robert H. Jackson, later a Justice of the Court, did not share Beck’s enthusiasm; the pre-1937 Court, he said, “sat almost as a continuous constitutional convention which, without submitting its proposals to any ratification or rejection, could amend the basic law.” R. Jackson, The Struggle for Judicial Supremacy x-xi (1941). Ward Elliott reports that Anthony Lewis (who was a leader in the drive that led to the “reapportionment” decision) asked Solicitor General Archibald Cox (who had filed a brief amicus for reapportionment in Reynolds v. Sims, supra note 1) when the Court announced its decision, “ ‘How does it feel like to be present at the second American Constitutional Convention?’ Cox retained enough of his old perspective to answer, ‘It feels awful.’ ” Ward Elliott, The Rise of a Guardian Democracy 370 (1974). See infra Chapter 5 note 1.

      6. See infra Chapter 16 at notes 20–28.

      7. 9 James Madison, The Writings of James Madison 191 (G. Hunt ed. 1900–1910).

      8. Joseph H. Choate comprehended that he could rely on the Court to react to the red flag of communism which he waved in Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, 532 (1895). Justice Stephen Field responded in a concurring opinion: “The present assault upon capital is but the beginning.