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Government by judiciary: The transformation of the fourteenth amendment
OCUSBOOKS oN IIII]1111III1' I1[I REVIEWS
G 0 VERNMENT B Y JUDICIA R Y: THE T R A N S F O R M A T I O N OF THE FOUR TEENTH AMENDMENT by Raoul Berger Harvard University Press The reviewer, Michael J. Phillips, teaches business law in the School o f Business at Indiana University.
Many of the Supreme Court decisions constituting the Warren Court's "Constitutional Revolution," not to mention some of its successor Court's judicial excursions, were expressly based on the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Legislative reapportionment and school desegregation, for instance, were founded on the Fourteenth Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." Also, many of the Warren Court decisions granting greater procedural rights in state criminal cases were facilitated by the "incorporation" of various Bill of Rights provisions (which do not directly apply to the states) into the Fourteenth Amendment's statement that no state may "deprive any person of life, liberty, or property, without due process of law." In addition, the newly created constitutional "right of privacy" (including one of
JUNE 1978
its principal offspring, the abortion decision) has also largely been developed out of this "due process" clause. Professor Raoul Berger, whose treatises on impeachment and executive power were gratefully received by opponents of the Nixon administration, has written a new book less likely to enthuse his earlier admirers; indeed, Government by Judiciary has been warmly praised by William F. Buckley, Jr., and his colleagues at the National Review. Professor Berger's basic thesis is that much Supreme Court decision making since the enactment of the Fourteenth Amendment represents an unwarranted and invalid departure from the intent of its framers, amounting in effect to a judicial usurpation of legislative power. The first half of Berger's book is a detailed examination of the Amendment's genesis and the purposes of its creators. Animating this discussion is the observation that "the North was shot through with Negrophobia [and]...the Republicans, except for a minority of extremists, were swayed by the racism of their constituents rather than by abolitionist ideology." Berger goes on to argue that black suffrage, legislative reapportionment, desegregated schools, and incorporation of the Bill of Rights were not intended by the framers of the amendment; that "due process of law" was given a strictly procedural meaning; that the "liberty" protected by this clause was not to be a source of new substantive rights; and that the "equal protection" clause was to operate in a very restricted fashion. Throughout this portion of the book, Berger goes to great lengths to
85
86
debunk the contrary arguments of various other commentators. The second half of Government by Judiciary is both a description of the twentieth century developments that Berger regards with such abhorrence and a polemic against these developments. Of particular interest are Berger's discussions of the strict "rule of law" orientation of both the Founders and the early federal courts; the late nineteenth century probusiness incorporation of "freedom of contract" into the due process clause via the doctrine known as "economic substantive due process"; the later shift from furthering organized economic interests to enhanced protection of various individual rights; and the contradictions displayed by liberal critics of the Burger Court. Throughout this portion of the book, Professor Berger is quick to note the inconsistencies expressed by some of the Court's ~eatest luminaries, effectively arguing that they were more than ready to adopt or abandon "strict constructionist" or "judicial activist" approaches as the occasion demanded to further their own ideas of justice. Here, Berger also argues that the Founders took a very dim view of the sort of judicial activism so characteristic of twentieth century Supreme Courts, whether "liberal" or "conservative" in complexion. Berger's factual account of the Court's behavior, I think, is for the most part unexceptionable. Of perhaps greatest interest are the jurisprudential assumptions underlying his approach to constitutional decision making. This approach is obviously animated by the views of various jurisprudential "schools" going under such forbidding names as "legal positivism," the "will theory" of law, or "analytical jurisprudence." Such schools usually define law as a written command promulgated by some legitimate political authority; Berger's obsessive search for the "true" intent of the Fourteenth A m e n d ment's framers and his apparent view that this intent should be implemented in the face of countless contrary decisions are evidence of such an outlook. Too, these schools custom-
arily see law and morality as quite distinct things, and Berger is at pains to inform us that the racism of the Amendment's framers does not reflect his personal views. Also, these schools often contend that law so defined should be obeyed and enforced, whether just or not; despite his personal liberalism, Berger thinks that the Court should never have embarked upon its revisionist course. The jurisprudential orientation can be contrasted with the "natural law" approach, which generally holds that substantive morality is an essential condition of a given law's binding a u t h o r i t y - t h a t is, that an unjust law is not truly law at all. It can also be contrasted with "sociological" thinkers who would suggest that law does and should change in accordance with shifting community values. Government by Judiciary seems to me to express inadvertently the difficulties presented by a strict adherence to positivist "rule of law" attitudes. First, there is the obvious problem posed by the need to follow enacted legal commands which are (or are perceived to be) blatantly unjust. While some legal positivists are ethical skeptics, Berger clearly is not, and his personal beliefs are in obvious conflict with what he sees as legal imperatives. More important, however, is the question of why enacted law should be obeyed if it is totally divorced from morality. In particular, why should the Court concern itself with the intent of the Fourteenth Amendment's framers at all? Although he devotes a chapter to just this question, Berger tends not to confront it squarely, preferring instead to quote various political and legal Wise Men (the more ancient the better) who do little more than restate his views in sonorous tones. At various points, however, he does refer to more persuasive arguments for his position--for example, the threat to stability and liberty posed by arbitrary and unchecked judicial power; the antidemocratic implications of judicial activism; and the availability of the amendment process as a constitutionally sanctioned method of change. Also, he does finally concede that, practically speaking, it would
BUSINESS HORIZONS
be disastrous for the Court to overrule one hundred years of decisions to return to the views of the Fourteenth Amendment's framers. But by doing all of this Berger tacitly adds a moral dimension to his "rule of law" legalism: This approach, after all, does serve certain tangible values. If this is true, however, the "intent of the framers" presumably should be followed only to the extent that it serves the values that legalism protects; and, in addition, that intent might be overriden by more pressing ethical concerns in particular cases. One need not be a devotee of the Warren Court to see that strict adherence to the purposes of those enacting the Fourteenth A m e n d m e n t would not always be clearly justified under such criteria. The view of constitutional adjudication I am briefly suggesting is obviously not much of a guide to deciding concrete cases, but to admit this is to say little more than that legal decisions are matters of judgment influenced by the demands of the particular situation. In most cases, the legalistic values embodied in Berger's approach should, of course, be given priority, both for the reasons suggested above and also in order to maintain the somewhat mythical idea of the "rule of law" to generate public support when judicial innovation is necessary. But the personal, moral, and intellectual attributes of judges (and the citizenry from which they are chosen) still remain of paramount importance to the quality and effectiveness of the decisions they reach, since the legal structure obviously is not self-enforcing. Yet this tends to conflict with the proceduralistic view of law and politics shared by Berger and his liberal critics. Despite the decline of "rule of law" values in the twentieth century, both still see political life as basically a matter of establishing neutral rules to govern the behavior of a presumably autonomous citizenry that will recognize no other restraints. But the character traits supporting judicial deference to the "rule of law" are not likely to prevail in our contemporary "do y o u r own thing" society. Thus the flexible and shifting Supreme Court decision
JUNE 1978
making which Berger decries is more than likely to continue for the foreseeable future.5
THE PEOPLE SHAPER S by Vance Packard Little, Brown and Company The reviewer, George W. Hettenhouse, teaches finance and is coordinator of faculty affairs in the Indiana University School of Business.
"We have not yet seen what man can make of man." This remark by the noted behavioral psychologist, B. F. Skinner, can elicit a wide variety of responses. Within the scientific c o m m u n i t y it can suggest fresh frontiers for technological breakthroughs to enhance the longevity of that frail piece of machinery that is man; among behavioralists it can call to mind dramatic advances in the understanding of human behavior and the prospects for behavior modification and control that now seem within reach. Among other segments of society it can elicit the feelings of fear and suspicion reminiscent of those encountered in a first reading of Orwell's 1984 or Huxley's Brave New World. From some there is the predictable knee-jerk reaction that demands an immediate cessation of such research, the same reaction that has frequently slowed the engines of technological change throughout history. As he has done so often in the past, Vance Packard has chosen to add his populist brand of social c o m m e n t to this new area of broad public concern. The People Shapers, like other Packard entries, is exhaustively researched and easily readable. Packard translates the impenetrable jargon of the behavioral scientist as well as the precise technical language of the medical c o m m u n i t y into terms easily understood and appreciated by the layman. Science describes modern man as a collection of physical parts controlled by a rather sophisticated central processor. From such scientific images of man emerges " a pervading
87
G 0 VERNMENT B Y JUDICIA R Y: THE T R A N S F O R M A T I O N OF THE FOUR TEENTH AMENDMENT by Raoul Berger Harvard University Press The reviewer, Michael J. Phillips, teaches business law in the School o f Business at Indiana University.
Many of the Supreme Court decisions constituting the Warren Court's "Constitutional Revolution," not to mention some of its successor Court's judicial excursions, were expressly based on the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Legislative reapportionment and school desegregation, for instance, were founded on the Fourteenth Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." Also, many of the Warren Court decisions granting greater procedural rights in state criminal cases were facilitated by the "incorporation" of various Bill of Rights provisions (which do not directly apply to the states) into the Fourteenth Amendment's statement that no state may "deprive any person of life, liberty, or property, without due process of law." In addition, the newly created constitutional "right of privacy" (including one of
JUNE 1978
its principal offspring, the abortion decision) has also largely been developed out of this "due process" clause. Professor Raoul Berger, whose treatises on impeachment and executive power were gratefully received by opponents of the Nixon administration, has written a new book less likely to enthuse his earlier admirers; indeed, Government by Judiciary has been warmly praised by William F. Buckley, Jr., and his colleagues at the National Review. Professor Berger's basic thesis is that much Supreme Court decision making since the enactment of the Fourteenth Amendment represents an unwarranted and invalid departure from the intent of its framers, amounting in effect to a judicial usurpation of legislative power. The first half of Berger's book is a detailed examination of the Amendment's genesis and the purposes of its creators. Animating this discussion is the observation that "the North was shot through with Negrophobia [and]...the Republicans, except for a minority of extremists, were swayed by the racism of their constituents rather than by abolitionist ideology." Berger goes on to argue that black suffrage, legislative reapportionment, desegregated schools, and incorporation of the Bill of Rights were not intended by the framers of the amendment; that "due process of law" was given a strictly procedural meaning; that the "liberty" protected by this clause was not to be a source of new substantive rights; and that the "equal protection" clause was to operate in a very restricted fashion. Throughout this portion of the book, Berger goes to great lengths to
85
86
debunk the contrary arguments of various other commentators. The second half of Government by Judiciary is both a description of the twentieth century developments that Berger regards with such abhorrence and a polemic against these developments. Of particular interest are Berger's discussions of the strict "rule of law" orientation of both the Founders and the early federal courts; the late nineteenth century probusiness incorporation of "freedom of contract" into the due process clause via the doctrine known as "economic substantive due process"; the later shift from furthering organized economic interests to enhanced protection of various individual rights; and the contradictions displayed by liberal critics of the Burger Court. Throughout this portion of the book, Professor Berger is quick to note the inconsistencies expressed by some of the Court's ~eatest luminaries, effectively arguing that they were more than ready to adopt or abandon "strict constructionist" or "judicial activist" approaches as the occasion demanded to further their own ideas of justice. Here, Berger also argues that the Founders took a very dim view of the sort of judicial activism so characteristic of twentieth century Supreme Courts, whether "liberal" or "conservative" in complexion. Berger's factual account of the Court's behavior, I think, is for the most part unexceptionable. Of perhaps greatest interest are the jurisprudential assumptions underlying his approach to constitutional decision making. This approach is obviously animated by the views of various jurisprudential "schools" going under such forbidding names as "legal positivism," the "will theory" of law, or "analytical jurisprudence." Such schools usually define law as a written command promulgated by some legitimate political authority; Berger's obsessive search for the "true" intent of the Fourteenth A m e n d ment's framers and his apparent view that this intent should be implemented in the face of countless contrary decisions are evidence of such an outlook. Too, these schools custom-
arily see law and morality as quite distinct things, and Berger is at pains to inform us that the racism of the Amendment's framers does not reflect his personal views. Also, these schools often contend that law so defined should be obeyed and enforced, whether just or not; despite his personal liberalism, Berger thinks that the Court should never have embarked upon its revisionist course. The jurisprudential orientation can be contrasted with the "natural law" approach, which generally holds that substantive morality is an essential condition of a given law's binding a u t h o r i t y - t h a t is, that an unjust law is not truly law at all. It can also be contrasted with "sociological" thinkers who would suggest that law does and should change in accordance with shifting community values. Government by Judiciary seems to me to express inadvertently the difficulties presented by a strict adherence to positivist "rule of law" attitudes. First, there is the obvious problem posed by the need to follow enacted legal commands which are (or are perceived to be) blatantly unjust. While some legal positivists are ethical skeptics, Berger clearly is not, and his personal beliefs are in obvious conflict with what he sees as legal imperatives. More important, however, is the question of why enacted law should be obeyed if it is totally divorced from morality. In particular, why should the Court concern itself with the intent of the Fourteenth Amendment's framers at all? Although he devotes a chapter to just this question, Berger tends not to confront it squarely, preferring instead to quote various political and legal Wise Men (the more ancient the better) who do little more than restate his views in sonorous tones. At various points, however, he does refer to more persuasive arguments for his position--for example, the threat to stability and liberty posed by arbitrary and unchecked judicial power; the antidemocratic implications of judicial activism; and the availability of the amendment process as a constitutionally sanctioned method of change. Also, he does finally concede that, practically speaking, it would
BUSINESS HORIZONS
be disastrous for the Court to overrule one hundred years of decisions to return to the views of the Fourteenth Amendment's framers. But by doing all of this Berger tacitly adds a moral dimension to his "rule of law" legalism: This approach, after all, does serve certain tangible values. If this is true, however, the "intent of the framers" presumably should be followed only to the extent that it serves the values that legalism protects; and, in addition, that intent might be overriden by more pressing ethical concerns in particular cases. One need not be a devotee of the Warren Court to see that strict adherence to the purposes of those enacting the Fourteenth A m e n d m e n t would not always be clearly justified under such criteria. The view of constitutional adjudication I am briefly suggesting is obviously not much of a guide to deciding concrete cases, but to admit this is to say little more than that legal decisions are matters of judgment influenced by the demands of the particular situation. In most cases, the legalistic values embodied in Berger's approach should, of course, be given priority, both for the reasons suggested above and also in order to maintain the somewhat mythical idea of the "rule of law" to generate public support when judicial innovation is necessary. But the personal, moral, and intellectual attributes of judges (and the citizenry from which they are chosen) still remain of paramount importance to the quality and effectiveness of the decisions they reach, since the legal structure obviously is not self-enforcing. Yet this tends to conflict with the proceduralistic view of law and politics shared by Berger and his liberal critics. Despite the decline of "rule of law" values in the twentieth century, both still see political life as basically a matter of establishing neutral rules to govern the behavior of a presumably autonomous citizenry that will recognize no other restraints. But the character traits supporting judicial deference to the "rule of law" are not likely to prevail in our contemporary "do y o u r own thing" society. Thus the flexible and shifting Supreme Court decision
JUNE 1978
making which Berger decries is more than likely to continue for the foreseeable future.5
THE PEOPLE SHAPER S by Vance Packard Little, Brown and Company The reviewer, George W. Hettenhouse, teaches finance and is coordinator of faculty affairs in the Indiana University School of Business.
"We have not yet seen what man can make of man." This remark by the noted behavioral psychologist, B. F. Skinner, can elicit a wide variety of responses. Within the scientific c o m m u n i t y it can suggest fresh frontiers for technological breakthroughs to enhance the longevity of that frail piece of machinery that is man; among behavioralists it can call to mind dramatic advances in the understanding of human behavior and the prospects for behavior modification and control that now seem within reach. Among other segments of society it can elicit the feelings of fear and suspicion reminiscent of those encountered in a first reading of Orwell's 1984 or Huxley's Brave New World. From some there is the predictable knee-jerk reaction that demands an immediate cessation of such research, the same reaction that has frequently slowed the engines of technological change throughout history. As he has done so often in the past, Vance Packard has chosen to add his populist brand of social c o m m e n t to this new area of broad public concern. The People Shapers, like other Packard entries, is exhaustively researched and easily readable. Packard translates the impenetrable jargon of the behavioral scientist as well as the precise technical language of the medical c o m m u n i t y into terms easily understood and appreciated by the layman. Science describes modern man as a collection of physical parts controlled by a rather sophisticated central processor. From such scientific images of man emerges " a pervading
87