- Series: Studies in Jurisprudence and Legal Hist
- Paperback: 578 pages
- Publisher: Liberty Fund; New Edition edition (June 1, 1997)
- Language: English
- ISBN-10: 0865971447
- ISBN-13: 978-0865971448
- Product Dimensions: 6.1 x 1.4 x 9 inches
- Shipping Weight: 2 pounds (View shipping rates and policies)
- Average Customer Review: 13 customer reviews
- Amazon Best Sellers Rank: #258,388 in Books (See Top 100 in Books)
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Government by Judiciary (Studies in Jurisprudence and Legal Hist) New Edition Edition
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About the Author
Raoul Berger was Charles Warren Senior Fellow in American Legal History at the Harvard Law School. Among his books is Executive Privilege: A Constitutional Myth.
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Only because I had to work so hard to make sense of it
Berger reveals why I had so much trouble - it was all a crock they taught me!
Law school teaches "unconstitutional law" - ie what the "justices' do - not what they are supposed to do under our constitution
Berger makes that crystal clear
PS - America is lost - our judicial system is as broke as exec. and leg branches - again read Berger and learn
Evil the Amendment may have been in its lack of scope, but its shortcomings were caused by the rampant racism endemic to the United States at that time, both in the North and South alike, not by Berger. To the contray, Berger merely has had the courage to stand up against contemporary, PC, soft-tolitarianism and to state the undeniable historical facts regarding the original meaning and application of the Fourteenth Amendment as well as contrast this originalism to the more recent, revistionist reinterpretation and applications by the Court. Looking to the bigger picture, what Berger does is challenge us to ponder whether going to all the fuss and bother of amending the Constitution to go beyond the very limited, original goals of the Fourthment Amendment might not have been a better course than giving the Supreme Court a quick-and-easy constitutional blue pen.
BTW, the "Pure Evil" review is pure crap.
The evidence, and plenty of it exists, establishes beyond any reasonable doubt that the framers of the Fourteenth Amendment intended that nearly all of the Bill of Rights should apply to the states. After much delay, this is precisely what has happened, and high time.
Michael Kent Curtis, a law professor, did the research Berger disdained to do in his rush to traduce history and print polemics. Curtis found, in congressional sources and documents accessible to any interested adult, that it was the purpose of Rep. John A. Bingham of Ohio, the father of the Fourteenth Amendment, and his colleagues in the Republican-dominated Congress, to make being an American mean something. Curtis' work and conclusions have been endorsed and amplified by Akhil Reed Amar of the Yale law school, one of our most knowledgeable experts on the Constitution. Berger made a powerful argument - but only if you ignore the substantial evidence that proved him wrong.
Until the Civil War cleared the way, states were free to trample your rights, whether you were black, white, or whatever, because the Bill of Rights only restricted the federal government.
Did you know that? The Supreme Court held that, in Barron v. Baltimore, an 1833 decision written by Chief Justice John Marshall, no less.
Thus, states could, and did, seize property and arrest people without a warrant. They beat confessions from people. Since the Bill of Rights did not protect anyone from states, states were free to try you in secret and without a lawyer, without due process of law, with no way to subpoena witnesses in your defense, no right to confront your accusers, no opportunity to cross examine, and no privilege against self-incrimination. All true. And states did worse: they promoted slavery and protected it by laws and by unlawful force. This is what "state's rights" means. The state has all the rights. You don't.
When the Civil War ended, the slaves were freed pursuant to the newly-adopted Thirteenth Amendment but that was not enough. States remained free to go on trampling the rights of anyone they chose as long as they did not make them slaves - unless, of course, they were convicted of a crime, in which case slavery was and is still legal. As we have seen, without the protections of the Bill of Rights, convicting you of a crime, and enslaving you all over again, was still too easy to do.
The protections of the Bill of Rights still did not apply to states. Not yet. Thus, even white citizens or newly-freed slaves could be searched and arrested without warrants, held incommunicado indefinitely, beaten till they confessed, tried in farcical proceedings, and sentenced to cruel and unusual punishments.
People were now convicted, though with no hint of due process, and could now lawfully be enslaved - made literal and actual, legal slaves -in prisons or on work farms. Just to be punitive, southern states also adopted Black Codes, laws that took away civil rights from Blacks. A freed slave could not contract, testify against a white person, enforce a claim for wages owed, and on and on. Freed slaves were as wretched as slaves but now they no longer had the means to subsist. Southern vindictiveness and race hatred knew no bounds. This situation also was intolerable, especially after a bloody four-year Civil War had ended in the overwhelming defeat of the Confederacy.
A constitutional amendment was called for to redress these many cruel wrongs.
The federal government had to respect your rights as set forth in the Bill of Rights, but ironically, states were free to ignore them. What difference does it make if the uniform of the officer who throws you in jail is a federal or a state uniform? Being in jail is still being in jail. What good were all those hifalutin American freedoms if any state could simply laugh at them and lock you up? Indeed.
The North would not tolerate this pathetic, tyrannical stare of affairs. So the Fourteenth Amendment was drafted and adopted, giving, for the first time in our history, a nation-wide definition of what a citizen is, and requiring that states provide you with the equal protection of the laws and with due process of law. The amendment was intended to extend the protections of the Bill of Rights to protect you from states, so that being an American actually meant something. After all, what good were all those rights in the Bill of Rights if states could simply ignore them? And ignore them they did, until the Fourteenth Amendment was adopted and applied by the courts, to carry out the northern victory.
Berger did his sorry best to defend the tyranny of states and make implementing the Fourteenth Amendment seem like judicial usurpation. But he failed or refused to seek out the clear and abundant evidence that this is precisely what Congress and the ratifying states intended. And he was wrong.
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This book proves it.
Let's take "Brown".Read more