- Hardcover: 169 pages
- Publisher: Univ of Oklahoma Pr; 1 edition (April 1989)
- Language: English
- ISBN-10: 0806121866
- ISBN-13: 978-0806121864
- Product Dimensions: 0.8 x 6 x 8.8 inches
- Shipping Weight: 14.4 ounces
- Average Customer Review: 3 customer reviews
- Amazon Best Sellers Rank: #1,827,521 in Books (See Top 100 in Books)
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The Fourteenth Amendment and the Bill of Rights 1st Edition
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Here, Berger addresses his critics' arguments and, again, demonstrates that the intended meaning of the Fourteenth Amendment was not to "incorporate" provisions of the the Bill of Rights and thereby make them applicable as limitations against the states. Instead, the amendment had a much more limited scope and meaning.
The theory of "selective incorporation" via the due process clause is quickly exploded by Berger. Shooting fish in a barrel came to mind, as the historical evidence is clear that "due process of law" is a procedural protection intended to protect defendants accused of a crime from arbitrary punishment. "Substantive due process" is a legal fantasy, Berger demonstrates. Indeed, few historians and academics will, with a straight face, defend substantive due process based on original intent.
Justice Black's theory of "total incorporation" via the "privileges or immunities" clause, however, is the main meat of Berger's book. The Bingham and Howard statements in the 39th Congress are given great attention by Berger. He explodes them both; Bingham was a confused, contradictory thinker on this subject, and Howard's brief statement played no influence. Berger lays out all the evidence from the framing and ratification debates demonstrating that "privileges or immunities" are terms of art borrowed from Article IV, and that their meaning is clearly tied to the specified rights in the Civil Rights Act of 1866. Incorporation was simply never imagined by the framers and ratifiers.
For "incorporation doctrine" scholars, and for those interested in the Fourteenth Amendment, this Berger classic is a must-read. Thoroughly researched, heavily cited, and well written, this book is a great supplemental to Berger's Government by Judiciary.