by RAOUL BERGER
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2 of 3 people found the following review helpful:
 The Best Book in Its Field, 2008-04-11
Raoul Berger's book is simply the finest work of American legal history there is. It bravely takes up a completely politically incorrect subject and arrives, after exhaustive examination of all of (and only) the relevant sources, at the necessary conclusion. It is written in straightforward prose, and it is simply jammed with fascinating information. Even the footnotes (yes, they are where they belong, NOT at the back of the book) are an intellectual feast.
When I read this book, I was no kind of expert, merely a graduate student in public affairs at the LBJ School at UT-Austin. In a short time, this book literally made a revolution in my outlook. It is extremely powerful, always timely, and worth coming back to again and again. My graduate students in American Constitutional History came to the same conclusion. This is why I relied on it extensively in The Politically Incorrect Guide to the Constitution (Unabridged), where I called it "A Book You're Not Supposed to Read."
2 of 3 people found the following review helpful:
Government by Judiciary, 2008-01-16
~Government by Judiciary: The Transformation of the Fourteenth Amendment~ by jurist Raoul Berger is a serious challenge to the American ideology of judicial nationalism, which has incrementally aggregated the power of interpreting laws, into law-making power itself. The U.S. Supreme Court has become little more than a junior-varsity Congress, prone to innumerable social engineering schemes, and often against the popular will of the American people. The reign of judicial activism was born in a dubious incorporation doctrine. Raoul Berger offers compelling evidence about the intentions animating the intentions of the framers and ratifiers of the original Fourteenth Amendment, and he demonstrates how it did not countenance the present doctrine of incorporation at all.
The States are the most integral ingredient to the federal polity. "The framer's political theory was immediately concerned with organization, not individuals... with principles of power allocation," notes Robert Nagel, and in disapprobation he laments "a widespread pattern that inverts the priorities of the framers; an obsessive concern for using the Constitution to protect individual rights." As jurist Louis Henkin remarked, "the Constitution said remarkably little about rights" since the federal government "was not to be the primary government... governance was left principally to the States." Jurist Michael W. McConnell remarks the "framers of the Constitution and the Bill of Rights believed that state governments were, in some vital respects, safer repositories over individual liberties than the federal government." The original Constitution, and its succeeding Bill of Rights, properly construed does not affirm any positive grant of rights at all. Its salient point was that it embodies a limitation upon the powers of the general government by virtue of delegation. The people themselves grant power to the institutions of government, entrusting it with only certain powers requisite for its operation, and trusting it with no more powers than those granted. The Rights of the Englishman antedate the Constitution, which is not presumed to grant people their rights; and indeed the U.S. Bill of Rights opens with the phraseology, "Congress shall make no law..." which itself is a negative. Hence, one of the duties of the federal authority was to refrain from interference with individual rights and leave their preservation to the people in their established communities among the several states.
The problematic incorporation doctrine which was read into the Fourteenth Amendment has arguably turned the whole constitutional structure on its nose. It has acted to solidify the de facto role of the U.S. Supreme Court as the final arbiter of the constitutionality of federal, as well as state legislation. This reality has been much to the detriment of the states and people thereof. For as former U.S. Attorney General Edwin Meese proclaimed in 1985, "nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation." The modern doctrine of incorporation holds that the guarantees of the U.S. Bill of Rights are selectively enforced against the power of state governments. As a result of this spurious heuristic, federal power is then further aggregated around the federal judiciary. In reality, the Bill of Rights was amended to the Constitution as a barrier to national intrusion upon regulating the police powers of the states. The gradual shift towards federally guaranteed civil rights--articulated and arbitrated by the federal judiciary--has resulted in the diminution of rightful state authority in the exercise of its traditional police powers concerning commerce, health, labor, welfare, safety and morals.
The pros to this book are its accuracy and devastating indictment of constitutional law run amok. The con is it is very technical and not so approachable by laypersons, who might find books on the activist judiciary by Mark Levin more approachable and readable. In the past century, the prerogatives of popular control and consent have been egregiously undercut by unaccountable elites within the federal judiciary. The increasing willingness of federal judges to dispense with the traditional rule of law has been a source of alarm to Americans in all quarters of the nation. Activist judges are more apt to impose their ideology and social engineering agenda on society at large. These same judges routinely discard constitutional limitations upon federal power while they needlessly hamstring the states in the legitimate exercise of their police powers. In a rare moment of sober-mindedness, the U.S. Supreme Court held that it "is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution... Otherwise, the judiciary necessarily takes to itself further to govern the country without express constitutional authority."
3 of 3 people found the following review helpful:
Not Pro Segregation!, 2007-05-14
This amazing work of scholarship explains in great detail that the courts powers of enforcement are very limited. It is unfortunate that people confuse this book to mean that segregation had to stay. All Raoul Berger states is that proper authority to enforce a limited form of civil rights lays with the more democratic branches of government. It is clear that this originalist interpertation of the fourteenth amendment was still violated by segregation (not to mention the 15th amendment) but Congress not the Supreme Court was meant to enforce these rights. For instance in this book's footnotes, especially footnote 34 in chapter 12 he supports certain federal civil rights statutes passed after 1964. This book is a great legal read, but must be thoroughly read (especially the footnotes) to understand the overall conclusion of it's author. Something that readers on the political left and the political right sometimes fail to do.
5 of 7 people found the following review helpful:
Written in '97 and very True Today, 2006-07-17
This book is very true. There is an old Irish proverb, "The Road to Hell is paved with good intentions".
This book proves it.
Let's take "Brown". Now, is this poster saying that all children are not entitled to a fair education. Of course not! And it's terrible that the courts had to get involved to solve the education issue of allowing children-of-color to attend a white school. If the various governments had acted right then there would have been no reason for the courts to strike down unjust laws regarding race.
However, what is scary about "Brown" is it allows the courts to get involved in the smallest detail of public life. So, the courts were correct in helping minority children attend a school. But, the courts actions do not just stop there. Like a bite of an apples, this books shows instance after instance where the courts continously invent rights for items that were once a state matter, such as land use, or in international matters, such as when the courts were finding rights for terrorists of the IRA.
If anything this book under states the cases of too much judiciary in the goverment. The results are that various groups that make up the plantiffs of the USA have a disproportionate amount of power. Example, the ACLU has defacto established the Christmas policies of the USA with its lawsuits. No vote was ever held that removed the Christmas displays from government. It was all lawsuits.
How will this end? This poster does not know. Perhaps one day the courts will over step their authority, such as in the granting criminal rights to Terrorists at GITMO, and they will be introduced to real power.
Since the writing of this book in 1997 the role of the judiciary has expanded.
This book is four stars, dated, but is still good.
7 of 16 people found the following review helpful:
"Brown" Was Wrong: Response to Lewiston, 2005-10-01
Yes, "Brown" was indeed wrong, if wrongness is judged by adherence to the Constitution, at any rate. More important, the Bill of Rights was never intended to apply to the States, but as a check against the power of the federal government. Berger is entirely consistent with the Constitutional understanding of those checks embodied in the Bill of Rights. Second, there are no such things as "civil rights." Wake up. All rights mentioned in the Constitution, if you assume that the Constitution is what it says it is, are given by a Creator (thus the "Liberty" mentioned in the Constitution is one of that Creator's "Blessings"). "Civil rights" are man-given, and man-taken-away; as such, they are worthless. "Civil rights" is chiefly a shibboleth emanating from the illegal 14th Amendment. In short, the Bill of Rights is not worth the paper it was written on if it were to apply to the States.
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