Government by Judiciary / Edition 2

Paperback (Print)
Buy New
Buy New from
Used and New from Other Sellers
Used and New from Other Sellers
from $4.98
Usually ships in 1-2 business days
(Save 65%)
Other sellers (Paperback)
  • All (9) from $4.98   
  • New (3) from $11.95   
  • Used (6) from $4.98   


The Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny.

— Raoul Berger

It is the thesis of this monumentally argued book that the United States Supreme Court—largely through abuses of the Fourteenth Amendment to the Constitution—has embarked on "a continuing revision of the Constitution, under the guise of interpretation." Consequently, the Court has subverted America's democratic institutions and wreaked havoc upon Americans' social and political lives.

One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out 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."

The Court has accomplished this transformation by ignoring or actually distorting the original intent of both the framers and the supporters of the Fourteenth Amendment. In school desegregation and legislative reapportionment cases, for example, the Court manipulated the history, meaning, and purpose of the amendment's Equal Protection Clause in order to achieve a desired political result. In cases involving First Amendment freedoms and the rights of the accused, the judges converted the Fourteenth Amendment's Due Process Clause into a vehicle for the nationalization of the Bill of Rights. Yet these actions were nothing less than "usurpations" that robbed "from the States a power that unmistakably was left to them."

This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.

Raoul Berger retired in 1976 as Charles Warren Senior Fellow in American Legal History, Harvard University.

Read More Show Less

Product Details

  • ISBN-13: 9780865971448
  • Publisher: Liberty Fund Inc.
  • Publication date: 6/1/1997
  • Edition description: New Edition
  • Edition number: 2
  • Pages: 578
  • Sales rank: 1,239,056

Table of Contents

Foreword xv
Preface to the Second Edition xxi
Acknowledgments xxiii
Abbreviations xxiv Part I
1. Introduction 3
Supplementary Note on the Introduction 18
2. “Privileges or Immunities” 30
Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights 44
3. The “Privileges or Immunities of a Citizen of the United States” 57
4. Negro Suffrage Was Excluded 70
Supplementary Note on Suffrage 85
5. Reapportionment 90
6. The “Open?Ended” Phraseology Theory 116
7. Segregated Schools 132
Supplementary Note on Segregated Schools 146
8. Incorporation of the Bill of Rights in the Fourteenth Amendment 155
Supplementary Note on Incorporation 174
9. Opposition Statements Examined 190
10. “Equal Protection of the Laws” 198
11. “Due Process of Law” 221
12. Section Five: “Congress Shall Enforce” 245
13. Incorporation of Abolitionist Theory in Section One 253
Supplementary Note on Abolitionist Influence 266 Part II
14. Natural Law to Libertarian Due Process 273
Supplementary Note on Natural Law and the Constitution 302
15. “The Rule of Law” 307
16. The Judiciary Was Excluded From Policymaking 322
Supplementary Note on Exclusion of the Judiciary 332
17. The Turnabout of the Libertarians 337
18. Liberals and the Burger Court 358
19. The Legitimacy of Judicial Review 369
Supplementary Note on the Role of the Court 378
20. Why the “Original Intention”? 402
Supplementary Note on Original Intention 410
21. Arguments for Judicial Power of Revision 428
22. “Trial by Jury”: Six or Twelve Jurors? 448
23. Conclusion 457 Supplementary Note on the Conclusion 466
Appendix A: Van Alstyne's Critique of Justice Harlan's Dissent 471
Appendix B: Judicial Administration of Local Matters 480
The Writings of Raoul Berger 485
Bibliography 493
Index of Cases 517
General Index 525
Read More Show Less

Customer Reviews

Be the first to write a review
( 0 )
Rating Distribution

5 Star


4 Star


3 Star


2 Star


1 Star


Your Rating:

Your Name: Create a Pen Name or

Barnes & Review Rules

Our reader reviews allow you to share your comments on titles you liked, or didn't, with others. By submitting an online review, you are representing to Barnes & that all information contained in your review is original and accurate in all respects, and that the submission of such content by you and the posting of such content by Barnes & does not and will not violate the rights of any third party. Please follow the rules below to help ensure that your review can be posted.

Reviews by Our Customers Under the Age of 13

We highly value and respect everyone's opinion concerning the titles we offer. However, we cannot allow persons under the age of 13 to have accounts at or to post customer reviews. Please see our Terms of Use for more details.

What to exclude from your review:

Please do not write about reviews, commentary, or information posted on the product page. If you see any errors in the information on the product page, please send us an email.

Reviews should not contain any of the following:

  • - HTML tags, profanity, obscenities, vulgarities, or comments that defame anyone
  • - Time-sensitive information such as tour dates, signings, lectures, etc.
  • - Single-word reviews. Other people will read your review to discover why you liked or didn't like the title. Be descriptive.
  • - Comments focusing on the author or that may ruin the ending for others
  • - Phone numbers, addresses, URLs
  • - Pricing and availability information or alternative ordering information
  • - Advertisements or commercial solicitation


  • - By submitting a review, you grant to Barnes & and its sublicensees the royalty-free, perpetual, irrevocable right and license to use the review in accordance with the Barnes & Terms of Use.
  • - Barnes & reserves the right not to post any review -- particularly those that do not follow the terms and conditions of these Rules. Barnes & also reserves the right to remove any review at any time without notice.
  • - See Terms of Use for other conditions and disclaimers.
Search for Products You'd Like to Recommend

Recommend other products that relate to your review. Just search for them below and share!

Create a Pen Name

Your Pen Name is your unique identity on It will appear on the reviews you write and other website activities. Your Pen Name cannot be edited, changed or deleted once submitted.

Your Pen Name can be any combination of alphanumeric characters (plus - and _), and must be at least two characters long.

Continue Anonymously

    If you find inappropriate content, please report it to Barnes & Noble
    Why is this product inappropriate?
    Comments (optional)