RAOUL BERGER AND THE DEBATE OVER

INCREASED JUDICIAL POWER

BY

William Gangi, Ph..D.

Associate Professor of Government and Politics

St. Johns University

Jamaica, New York

[This article was originally printed in The National District Attorneys Association Journal, and is printed here with their permission.  It may depart from that article with respect to some editorial revisions.   A more complete version of this article may be found in 8 Ohio Northern Law Review 1 (1980)]

The Supreme Court, dissenting Justices frequently have charged, has engaged in amending the Constitution and in the process has taken over from the Congress, the States, and the people themselves the making of major policy decisions. The expansion of judicial power has not gone unnoticed in legal literature. Until recently, however. systematic and sustained attacks on its legitimacy have been scanty. In 1977, Raoul Berger, often credited with providing the legal underpinning for impeachment of Richard Nixon, published Government by Judiciary: The Transformation of the Fourteenth Amendment, and concluded on the basis of the historical evidence that the Court had usurped power, particularly with respect to reapportionment and segregation issues, which the framers had withheld. Understandably, this triggered vehement criticism by those who perceived a grave threat to cherished social gains of the past 25 years provoking no less vigorous replies by Berger. The ongoing debate in the journals by now has run to 1000 or more pages. To assist those who cannot take the time to burrow through those pages, I have attempted to structure the debate by way of a brief introduction to the broad outlines of' the two major issues in dispute: the history of the 14th amendment, and the role of the Supreme Court in our democratic system.

THE FOURTEENTH AMENDMENT:  A VEHICLE FOR JUDICIAL ACTIVISM

The precedent most frequently invoked by critics of current judicial involvement in public policy disputes is the analogous court activity in the laissez fair-e period (1880-1936). In those days judicial activism centered, as we all know, on property rights. A majority of' the Court evidently believed when that a "free'' exchange of market forces, particularly capital and labor, would lead to economic prosperity. The Constitution accordingly was interpreted to prohibit interference with the individual rights considered essential to the uninhibited operation of economic forces: e.g.. supply and demand. Assumed also was the existence of an an "invisible hand'' that guided seemingly self-interested individual pursuits to the eventual public interest. The rights protected were said by the Court to have their constitutional roots in the "liberty'' and "due process" clauses of the fourteenth amendment which allegedly offered "substantive'' protection. Upon this constitutional basis in the early nineteen hundreds the Court majority struck down state and federal legislation proposed to ameliorate the hardships of recession and eventual depression. Progressivists bitterly condemned the Court majority for imposing their personal economic beliefs on the country under the guise of constitutional interpretation. Eventually, those much criticized d Fourteenth Amendment adjudicative doctrines fell into disrepute and were expressly repudiated by the Court subsequent to the New Deal.

Today there is an increasing body of legal literature which accuses the judiciary of again reading personal values into Fourteenth Amendment language. These critics point to the Court's elevation of preferred freedoms (e.g., free speech), its creation of new "substantive" (e.g.. privacy, travel) due process rights, and its application of historically unsupported interpretation of the equal protection clause. Assessing the old analogy, the Court is now condemned for creating new shackles to replace those that had been alleged to exist under laissez faire. Critics, for example. point to the federalization and creation of numerous "rights" of the accused and the evident belief that such a constitutional interpretation will not have a detrimental effect on the states' ability to cope with criminal activity.

Contemporary critics of the Court note that during the laissez-faire period the judiciary had only declared unconstitutional particular means Congress and state legislatures deemed appropriate to meet the challenges and ill-effects of the industrial revolution. In recent years, the Court has not only sat in judgment (declared unconstitutional) particular legislative policy choices; now, however, critics charge that the judiciary goes further--frequently specifying in considerable detail what means must be employed (e.g., Miranda v. Arizona and Roe v. Wade). In addition, there is the notable fact that in some instances (busing to achieve school desegregation, reform of prison and mental hospital conditions) the judiciary has decided, not only what standards were required and what means were to be employed to achieve those standards, but also instructed the political branches to provide whatever financial resources necessary to execute such judgments. Critics describe this exercise of judicial power as unprecedented.

FOURTEENTH AMENDMENT HISTORY

The first part of Government deals with the 14th Amendment and its subsequent ratification. What did its framers intend to accomplish, or put another way, at the time was their purpose clearly understood? Berger maintains that the framers had very limited objectives in proposing the fourteenth amendment, and that while some of the amendment's language may appear vague and or ambiguous to some of us, it was crystal clear to those who proposed and ratified the amendment.

The sole purpose of the Amendment was to "constitutionalize" the Civil Rights Act of 1866, and so the Act and Amendment were intended to be "identical."  Radical Republicans, fearing that southern states soon would again be seated in Congress, wished by adoption of the Amendment to put the Civil Rights Act beyond ordinary legislative repeal. Berger's historical investigation reveals that the only clause in the Amendment which was intended to contain substantive civil rights for Blacks was the privileges or immunities clause. The "civil" rights granted therein were thus limited, confined to those of personal security, freedom of locomotion, and ownership and disposition of property. They also included the right to testify in court but not to serve on a jury.

Berger further contends that the two remaining clauses--due process and equal protection--were only adjective in nature. Neither clause independently represented a source for additional rights. Equal protection was designed to insure there would be no discrimination between blacks and whites with respect to the enumerated rights (i.e., those subsumed under "privileges or immunities"); and those rights were to be protected by access to the Courts through due process (traditional procedures). The framers disclaimed an intention to confer social and political equality on blacks or to go beyond the enumerated rights. Indeed, in the context of existing racism, any broader interpretation of the Amendment's purpose would have doomed ratification even in northern states.

Berger's four-fold conclusion may be summarized: (1) Those who framed and ratified the amendment disclaimed an intention to interfere with the states' previous right to define qualifications for voting, institute segregated schools, or adopt reasonable legislative classifications based on race or sex in areas not "civil" or precluded by the enumerated rights embodied in the privileges and immunities clause. (2) The due process clause was confined to judicial proceedings and offers no basis whatsoever for control ling state legislation. (3) There was no intention to make the Bill of rights (the first eight amendments) applicable to the states. (4) One must reject, finally, as unsupported speculation and contrary to the historical evidence, any claim that the amendment was framed with intentional vagueness to permit later "growth" in definition or "open-ended" adjudication.

WHAT IS THE PROPER ROLE OF THE SUPREME COURT

Although the conclusions Berger drew are intrinsically important, the debate which subsequently developed does not really focus on them. In fact, some of Berger's most pointed critics admit that his historical account of fourteenth amendment history and purpose is largely accurate. Instead, the debate revolves around Berger's charge, extrinsic to the conclusions outlined, that the Supreme Court is guilty of usurping authority under the 14th Amendment that was withheld. Critics charge him, in effect, with challenging a cornerstone of the American legal landscape as old as Marbury v. Madison--Judicial Review.

Put otherwise the question is this: If the original intentions of the framers are clearly discernible, may the Supreme Court legitimately contradict those intentions? Berger answers in the negative while his critics generally take an affirmative stance. To clarify the scope of this debate the arguments of Berger's critics may be grouped (as we here proceed to group them) into nine mutually supportive categories. While the fundamental arguments of both Berger and his critic are reserved for brief exposition later the reader may appreciate an opportunity to view the forest before examining each tree. The position of Berger's critics may be reduced to at least the following nine arguments:

1--The past is dead--the Constitution living.

2--When a vacuum exists in pursuing societal ideals,

3--the Supreme Court is best suited

4--to obtain results.

5--In the context of a cumbersome amendment process

6--the Court is responsible for securing individual rights.

7. This new Court role has been accepted by the American people,

8--and is irreversible.

9--The time has come to recognize explicitly our LegisCourt.

For each of those positions the arguments of Berger's critics will put forth first, followed by Berger's rejoinder.

1. The past is dead--the Constitution living.

Critics argue:  Berger possesses a noble but unrealistic and romantic view of our history. The Constitution was adopted in economic, political, and social circumstances radically different from our own. The "Founding Fathers have been buried. They should not rule us from their graves."

Accordingly, these critics claim that Berger uses ordinary canons of statutory interpretation that are are not applicable when dealing with constitutional, construction. Since statutes can be changed by ordinary legislative majorities, it is fitting for the judiciary to adhere to the original intentions of the authors of such legislation. But being bound to the original intentions of the constitutional framers is a different matter. Even if those intentions could be discerned, at best judicial adherence to them would entail remaining bound to unduly narrow and in several instances (e.g., separation of powers) discarded views of interpretation. At worst it would leave us incapable of keeping the Constitution up to date. Berger casts aside Chief Justice John Marshall's admonition to judges to remember "it is a constitution [that they] are expounding."

By way of illustration, these critics point to the evolution in meaning endured by the commerce clause. Should we be bound, they ask, by the meaning "commerce" had 200 years ago? The Framers were well aware of the need to adapt to new circumstances, and also included such phrases as "necessary and proper." In order to prevent constitutional atrophy or the need for hundreds of amendments, the Supreme Court cannot be bound by original intentions.

Berger's Rejoinder:  If constitutional clauses are ambiguous or unclear the Court has had and should have flexibility in interpretation. But that has not been the issue in recent cases. For example the framers of the 14th Amendment excluded interference in state policies regarding voting rights and school segregation. That intention is unmistakable, and in such decisions as Brown v. Board of Education and Reynolds v. Sims, the Court reversed those intentions, thereby going beyond its constitutional authority.

If the Court is vested with the authority to bring the Constitution into line with contemporary circumstances, no rights are immune from future judicial alteration. Furthermore if clear intentions are not binding on the Court, logic leads to a total rejection of the very idea of a constitution: i.e., legally prescribed limits to governmental power. The issue, therefore, is not whether the Founders intended the Court to exercise the power of judicial review. They did. The issue instead is what was the intended scope of that power? Judicial review, Berger concludes, was confined to supervising the boundaries of power. Congress and the states whose representatives are politically accountable, were to be paramount in deciding public policy. The role of the Court, therefore, was to be one of a "nay-sayer,'' never an "initiator'' of legislation, and still less a reviser of the Constitution. Marshall explained that his phrase that this is a "Constitution we are expounding'' did not claim a judicial right to change the instrument.

2. When a vacuum exists in pursuing "societal ideals". . .

Critics argue: American "societal ideals" have always revolved around liberty and equality.  But since W.W. II there was an increasing awareness that our professed ideas did not in fact coincide with societal realities--for example, with respect to racial discrimination and the treatment due even criminal defendants. Although the need for social reform was apparent, both federal and state executives and legislators were ill-equipped and or unwilling to respond. Had it not been for the Court's intervention, these situations would have remained uncorrected. It was the "nonfeasance," therefore, of the political branches which necessitated the Court's stepping into an existing "vacuum" to give this country's moral principles a constitutional foundation.

Berger's Rejoinder:  Proponents of judicial power confuse law and morals. The Constitution set up only a structure for limited government, not a cure for every possible societal injustice. There is no support for the view that if the legislature fails to exercise certain powers, these powers somehow descend on the Court. Indeed, the position that the Court should have any legislative input was rejected specifically at the Convention: i.e., the Council on Revision. The choices represented by the Constitution and the 14th Amendment framers were in fact ratified by the people. If those choices are to be changed, the Constitution provides the machinery: Amendment processes under Article V. Finally, since the Framers specifically rejected a legislative role for the Court, is not Congress the more appropriate and politically accountable instrument of change?

3. ... the Supreme Court is best suited . . .

Critics argue: Our political process ordinarily is geared to weighing competing societal needs and to seek accommodation between represented interests. Berger fails to recognize that the democratic process breaks down either when the legislature attempts to isolate itself from change by hampering political expression, or where popular prejudices exist against socially or racially insulated minorities. Experience indicates that the Court must view with closer scrutiny any attempt to inhibit free expression, or insulate minorities, while affording the other branches of government greater discretion over economic policy choices.

The judiciary is the government branch best suited to deal with the shortcomings of the democratic process because, unlike elected officials, it is not susceptible to pressure by organized interest groups and popular prejudices. Legislators and executives, urged by inflamed constituents, may ignore the long term consequences of a selective denial of rights and respond by restricting the constitutional freedom of those particularly feared or hated. As Professor Lusky maintains, in recent years the Court has claimed a "new and grander conception of its own place in the governmental scheme." Berger consequently fails to grasp adequately the Court's status in contemporary American society.

 Berger's Rejoinder:  These critics must establish the constitutional authority for this expanded judicial role. Where is this authority located to rewrite the Constitution as a majority of the Court sees fit? Who gave this power to the Court? The claimed revisory role is no older than Brown and the Court cannot assume power on the sole basis of what its majority perceives is unjust, or upon the belief that the democratic process has broken down. To exercise power on the supposed ability to discern a national consensus would obviate the legislative function as well as totally ignore the constitutionally mandated amendment process intended to ascertain these basic changes in public sentiment.

Arguments based on the supported assumption of judicial "expertise" to identify alleged injustices or flaws in the democratic structures are irrelevant.  The Constitution, not expertise, confers power, and proponents of judicial power have failed to establish its conferral. Berger accordingly accuses many of his liberal critics of inconsistency because during the 1920's they had been most vocal about federal judicial usurpation, accusing the Court's majority of writing personal values into the Constitution. Today, they have found "new faith" in the benign possibilities of judicial power. Only liberal intellectual prejudices, furthermore, permit elevation of personal above the once dominant property rights. The standards for evaluating legislative, executive, or judicial abuse of power are and should be the same:   the intentions of the framers. "What is sound sense for the impeachment of Richard Nixon does not become nonsense when applied for refutation of Chief Justice Warren."  If the exercise of judicial power should again be perceived as "malign," upon what constitutional grounds would these critics protest?

 

4. ... to obtain results.

Critics argue:  The Court cannot be fettered by the intentions of men long since dead as advocated by Berger, but instead the Justices must reach results consistent with our societal and democratic ideals. Berger fails to appreciate the significant accomplishments of the Court since Brown. Contemporary interpretations of the 14th Amendment, while perhaps not consistent with the original intentions of its framers, has resulted in the expansion of suffrage, reforms in race relations, and humane state administrations of criminal justice.

Berger's Rejoinder:  The threshold questions is jurisdiction--power to act on the premise that results are laudable does not confer the power to accomplish them. Berger further challenges his critics to validate their assumption that the results reflect popular standards of decency. He points to increasing rancor over issues such as busing, affirmative action, abolition of the death penalty, abortion, and control over state criminal law administration. In these instances, the Court is once again taking over public policy choices under the guise of constitutional interpretation, repeating the mistake of the Dred Scott and Lochner Courts.

5. In the context of a cumbersome amendment process. . .

Critics argue: Like the processes of the political branches of government the path for constitutional amendment often is blocked by inertia or political irresponsibility and opportunism. The amendment process works to the inherent disadvantage of isolated and unpopular minorities. Moreover, in areas like malapportionrnent, it is unrealistic to expect that legislators would have voted against their own interests, whereas contemporary public policy issues have been effectively handled by the judiciary. Since the Constitution should not be frozen in the 18th Century the amendment process does not foreclose the Court from changing the Constitution to conform to contemporary needs.

Berger's Rejoinder: Compliance with the law is not excused because it it difficult. Noncompliance evinces distrust of the wisdom and/or good will of the American people. Inability to obtain popular consent for necessary social reform confers no power on the Court to accomplish them. With respect to discerning popular consent, Hamilton made clear in The Federalist Papers that "no presumption, or even knowledge of their sentiments, can warrant" their representatives in a departure from (the Constitution), prior to (an amendment)."

 

6. . . . it is the responsibility of the Court to secure individual rights.

Critics argue:  Berger fails to give due consideration to the fact that individual rights constitute the very essence of our governmental scheme.  These critics, however, often differ as to the origins of these rights. Some maintain our nation's emphasis on individual rights was manifested initially in the Bill of Rights. Others, skeptical of the historical accuracy of such a position, contend that the emphasis on individual rights began in Gitlow v. New York (1925) and after 1938 evolved into the preferred freedoms (expression, association, balloting) position.

In any event, all of Berger's critics agree that the very importance of these rights justifies application of a double standerd: i.e., closer judicial scrutiny of legislation pertaining to preferred freedoms than of freedoms associated with property rights. The Court, they conclude, sitting as it does at the apex of our political system, is the greatest institutional and constitutional safeguard we possess for the "guardianship of our basic civil rights.''

Berger's Rejoinder: Since the nonapplicability of the Bill of Rights to the states was not altered by the 14th Amendment, the Bill of Rights offers no authority for increased judicial power over "local" matters. The opinion of Gitlow, moreover, was based on long discarded "liberty of contract" precedents and these critics have failed to establish a historical basis for the rights they claim.

In addition, while the critics consider "freedoms'' as crucial the Framers quite clearly believed property rights were more important than any other rights. In any event, for the Framers, no individual rights superseded the will of the people as expressed in the Constitution. Application of the first amendment prohibitions to the states, for example, was specifically rejected by the First Congress--a position supported even by Jefferson. Finally, Justice Stone, author of the preferred freedom doctrine,  himself later warned that these rights should not be so construed as to subject the majority to the "tyranny of the minority."  The judiciary has no right to substitute its personal values for the choices made by the Framers and ratified by the people.

 

7. This new Court role has been accepted by the American people . . .

Critics argue: Even if it is conceded that the Court today plays a greater role than originally intended this new judicial role has been accepted by the people as part of our contemporary constitutional structure. Consent is evidenced by popular acceptance of the results achieved: i.e., tacit consent. Since the Court lacks any real independent coercive power, if the people had not accepted the Court's role and the results achieved, they would have demanded traditional measures to restrict the Court (e.g., removal of appellate jurisdiction, impeachment). The absence of this demand indicates implicit acceptance or at least acquiescence to increased judicial power.

Berger's Rejoinder: Ratification requires disclosure. But the people have never been told that in fact that the Justices, under the guise of interpretation, are imposing their will upon the people. Instead, they have instead insisted that it is the Constitution that demands judicial control over busing, affirmative action, abortion, local criminal administration and the like. Absent disclosure of judicial revision of the Constitution the consent of the people cannot be presumed.

 

8. . . . and is irreversible.

Critics argue: The arguments for the irreversibility of recent Court decisions rest, first, on the postulate that under our constitutional scheme personal rights were intended to expand, not contract. In this context, the aforementioned double standard relating to different Court treatment of personal versus property rights has multiple application. Stare decisis, for example, should work primarily to thwart contraction of personal rights, but pose no significant barrier to expansion. Likewise, it is acceptable for states to act as experimental "laboratories" for economic programs but not for personal rights.

Second, the practical arguments against reversing recent Court decisions rest on several grounds. (1) Subscription of Berger's position would entail reversing an enormous number of recent cases, jeopardizing the social progress of two decades. (2) Even recent "conservative' Court appointees apparently have accepted an expanded judicial role. (3) Reversals, particularly those involving school desegregation could lead to rioting or even rebellion.

Berger's Rejoinder: While reversal of desegregation decisions is "utterly unrealistic and probably impossible," hypothetical considerations should not bar examination of essential constitutional issues. Past usurpation does not justify further violations. Were irreversibility accepted on the level of theoretical principle we still would be under the reign of the laissez-faire doctrine!  Likewise, successful repetition of usurpation does not legitimatize it. If it could, past failures to punish executive abuse would have precluded Nixon's impeachment.

Beger believes the 14th Amendment increased congressional power and control over court jurisdiction. Should all else fail to keep the judiciary within constitutional bounds, impeachment is the sanction for abuse of power, whether executive or judicial.

 

 9. The time has come to recognize explicitly our LegisCourt.

Critics argue:  Several advocates of expanded judicial power conclude that the Founding Fathers empowered the Court to rewrite the Constitution  in kinds of issues now confronting the Court. In order to protect itself from popular outcry in the past, the Court had to pretend that it was the Constitution rather than itself that was making public policy choices. The people, at least one author contends, now are ready for "truth in judging" and the pretense of constitutional interpretation should therefore be dropped. The Court should frankly admit that today its primary function is not judicial but legislative in nature. The Supreme Court is a "governing body in the sense that it makes the basic policy decisions of the nation."  It is our LegisCourt.

Berger's Rejoinder: There is no support for such a broad view of judicial power, and in fact even a more limited view was proposed and specifically rejected at the 1787 Constitutional Convention. Berger, however, apparently is grateful that at least some apologists for expanded judicial power now frankly admit that the Justices are imposing their own and not constitutional values on the American people. "`The foundation of morality is to have done, once and for all, with lying.'" Berger raises no principled objection to the institution of the proposed LegisCourt. He insists that it be proposed in the form of an amendment for approval by the people under the processes set forth in the fifth article of the Constitution. "That will be the moment of truth."

CONCLUSION

For the past two decades proponents of judicial expansion have presumed an extra-constitutional power to "perfect" the Union. Today this presumption is being vigorously challenged. While the political dust has not settled over the long term repercussions of the 1980 election, there are some indications that it may mark the end of a social, political and economic era. If it does it is likely that the arguments detailed herein and now confined largely to the legal literature will spill over into the political arena as analogous ones did, subsequent to the election of Franklin D. Roosevelt. Such a debate will not only affect practicing members of the bar but it most assuredly will shape the succeeding generation of legal talent in the United States. On the eve of the two hundredth anniversary of our constitutional founding a more fitting debate could not have been imagined.

EPILOGUE

Much has transpired since this article was written, including the rejection of one nominee for the Supreme Court--Robert Bork.   During the debates between Albert Gore and George Bush the candidates took opposing positions on the type of candidates they would favor for the Supreme Court.  Bush favored candidates who would interpret the Constitution narrowly and would adhere to the framers intentions;  Gore favored nominees who would broadly construe constitutional rights.  Ironically, in the final suit ending the presidential race in Bush's favor Gore's preference was honored--a Supreme Court majority who's broad interpretation of equal protection ended his candidacy.

This year, three months short of his one-hundred birthday, Raoul Berger passed away.  His widow informed me that her husband ask that "He never quit trying" be carved on his tombstone.