Almost twenty years before First Things’ symposium “The End of Democracy? The Judicial Usurpation of Politics” (November 1996), Raoul Berger, in Government by Judiciary, sounded an alarm about the extent of the judiciary’s encroachments on democratic legislative authority. Under the pretext of giving force to Fourteenth Amendment guarantees of due process and equal protection, Berger argued, the courts have in effect rewritten the Constitution to make it conform in key respects to the judges’ own favored moral and political notions. Although Berger’s book, like First Things’ symposium, provoked a firestorm of protest from defenders of expansive judicial power, its critique of judicial usurpation was compelling then, and, if anything, seems even more so today.
It is a pleasure to reread Berger’s masterwork in a beautifully produced and affordable Second Edition from Liberty Fund. The pleasure is increased by Berger’s updating of his argument in supplementary textual notes and new footnotes, many of which offer careful yet characteristically spirited responses to the voluminous criticism he has received since Government by Judiciary originally appeared in 1977.
Berger famously argued that the great 1954 school desegregation case of Brown v. Board of Education was incorrectly decided because the framers of the Fourteenth Amendment did not intend its equal protection clause to require racial integration of the public schools. According to Berger, the sole purpose of the Fourteenth Amendment, which was ratified in 1868, was to reinforce the federal Civil Rights Act of 1866 and protect it against repeal by a future Congress. Plainly the act did not outlaw segregation itself. Indeed, Berger argues that racial integration of the sort eventually mandated by the Supreme Court in Brown was anathema not only to virulently racist Democrats who opposed the Fourteenth Amendment, but even to many of its Republican supporters, whom he describes as “negrophobic.”
The Brown decision, then, was wrong, according to Berger, not merely in its reliance on questionable psychological and social scientific evidence and methodologies, as many critics have alleged, but in its outcome. A correct decision, Berger maintains, would have upheld as constitutionally permissible a racist policy that he himself joins supporters of the Brown decision in condemning from the moral point of view. Unconstitutional “government by judiciary” is a bad thing, he insists, even in a good cause
Ironically, in rejecting the idea that the outcome in Brown can be squared with the original understanding of the Fourteenth Amendment, Berger, the great critic of judicial usurpation, finds himself in the company of Ronald Dworkin, Laurence Tribe, and other prominent liberal supporters of expansive judicial power. They too believe that the equal protection clause was not intended to prohibit de jure racial discrimination. They differ with Berger, however, in rejecting the proposition that the equal protection clause and other “majestic generalities” of the Bill of Rights and the Fourteenth Amendment ought to be construed to give effect to the intentions of the framers and ratifiers. From the alleged incompatibility of the outcome in Brown with the “original intent” of the Fourteenth Amendment, Berger infers the illegitimacy of judicially mandated desegregation. Liberal constitutional scholars and activists, by contrast, infer the illegitimacy of “originalist” arguments for judicial restraint. Having dismissed originalism, they then invoke the moral authority of Brown to justify, for example, the judicial manufacture of a right to abortion in Roe v. Wade.
Of course, not all “originalist” critics of judicial usurpation join Berger in condemning Brown as an example of “government by judiciary.” I myself believe the case was correctly decided (though I regret Chief Justice Earl War ren’s failure to make a truly princi pled argument along the lines ad vanced by Justice John Marshall Harlan in his dissent in the 1896 case of Plessy v. Ferguson). The most prominent contemporary “originalist” of them all, Robert Bork, has ar gued that the outcome in Brown is justified because, whatever the fra mers’ personal beliefs about the compatibility of segregation with the principle of equality they entrenched in the Constitution, it was plain by the 1950s that “separate” facilities inev ita bly meant inferior treatment for blacks.
The eminent legal historian and constitutional scholar Michael W. McConnell has mounted a powerful assault on the modern consensus that “Brown was inconsistent with the original understanding of the Fourteenth Amendment” (Virginia Law Review, May 1995). Central to this attack are McConnell’s efforts to undermine Berger’s claim that the Amendment was intended to add nothing in content to the 1866 Civil Rights Act. McConnell points out that while the act enumerates a list of specifically protected rights, the Amendment speaks in general and comprehensive terms. In fact, the Amendment contains a provision identical in substance to a clause of the 1866 law that was removed from the final bill precisely on the grounds that it swept too broadly. “A fair inference,” McConnell concludes, “is that the Amendment was understood to encompass the broad range of ‘civil rights and immunities’ that was entailed by the original draft of the 1866 Act.” Thus, he maintains, Berger’s claim that the Amendment was understood by its framers and ratifiers to go no further than the act in protecting civil rights is false to the historical data.
McConnell shows that during the years immediately following the Amendment’s ratification, a solid majority of political leaders who had supported the Amendment believed that state–sponsored segregation was incompatible with its guarantees. Indeed, in several votes during the three or four year period following ratification, substantial majorities of both the U.S. Senate and House of Representatives—explicitly invoking the principles of the Fourteenth Amendment—supported school de segregation and opposed the separate–but–equal principle that was later upheld in Plessy and finally condemned in Brown
McConnell does not deny Berger’s claim that “negrophobia” afflicted even many supporters of the Fourteenth Amendment, but he challenges the inference Berger draws from it—namely, that Republicans of the Reconstruction period could not have opposed the legally mandated separation of the races in state–sponsored education. McConnell ob serves that the conceptions of citizenship and civil rights that were at the heart of Republican political theory provided a basis for opposing segregation, notwithstanding anyone’s beliefs about the alleged intellectual or social inferiority of blacks. Thus even “negrophobic” Republican mem bers of Congress in the late 1860s and early 1870s consistently voted against legally mandated segrega tion.
At a minimum, McConnell’s careful and exhaustive historical research gives us reason to subject to renewed scrutiny Berger’s claim that the outcome in Brown is unsupported by, and indeed incompatible with, the original understanding of the Fourteenth Amendment. This makes the publication of a second edition of Government by Judiciary all the more timely and convenient.
Robert P. George is Cyrus McCormick Professor of Jurisprudence at Princeton University. His most recent book is In Defense of Natural Law (Oxford University Press).