In “Government by Judiciary: The Transformation of the Fourteenth Amendment” Raoul Berger argues that the Fourteenth Amendment is treated by activist judges as a platform for “social and political revolution.” In theory, the role of the courts is to interpret the Constitution not to amend it. Nevertheless, by treating the Fourteenth Amendment as a “vague and elastic” tool designed to forge a brave world of racial equality, progressive judges have conferred revolutionary powers on themselves.
Progressive courts, while purporting merely to enforce the equal protection of the law, have reasoned that in order to give effect to equality it is necessary to “incorporate” the Bill of Rights into the Fourteenth Amendment. This then allows the Bill of Rights to be litigated in anti-discrimination cases brought by civil rights activists against state governments. For example, the incorporation doctrine was relied on in the recent federal court ruling that schools named after Confederate generals violate the First Amendment free speech rights of black students by constituting a form of “compelled speech”.
David Gordon has also pointed out that the incorporation doctrine is not found in the Constitution itself, but has been crafted by activist judges as a way of centralizing federal power in a manner that is inimical to individual liberty. As Gordon observes,
Critics of incorporation such as Raoul Berger have persuasively argued that the doctrine has scant basis; additionally, it strikes at the states as independent sources of authority to the federal government. Is it not likely that more is lost to individual liberty by the increased subordination of the states to federal courts than is gained by decisions that on occasion strike down bad state laws?
Berger notes that the Fourteenth Amendment began life as political measure in the tumult of the Reconstruction Era but soon grew in such leaps and bounds that it is now “probably the largest source of the [Supreme] Court’s business and furnishes the chief fulcrum for its control of controversial policies.” This is a far cry from the original intention of the amendment. It was originally “intended only to protect the freedmen from southern Black Codes that threatened to return them to slavery” by ensuring that freedmen would have “the right to contract, to own property, and to have access to the courts.”
It is certainly true that these basic liberties, which are protected at federal level by the Fifth Amendment due process clause, struck many observers in 1865 as essential to give effect to the abolition of slavery. As an originalist, Justice Clarence Thomas has emphasized this aspect of the amendment, but he argues that it has extended over time far beyond its original purpose. In Medina v. Planned Parenthood, he commented on the misuse of the procedural provisions of the Civil Rights Act of 1871 (the Ku Klux Klan Act) which were intended to enable freedmen to protect their constitutional rights from violation by states in order to ensure that the equal protection clause could be meaningfully enforced. Justice Thomas outlined the legislative history of this law in Medina, further observing that
The 1871 Act was designed “to enforce the Provisions of the Fourteenth Amendment … in response to an ongoing pattern of violence and intimidation” against former slaves … [to provide] a means by which private plaintiffs could obtain redress from state and local officials for certain constitutional violations.
This is a classic example of laws being enacted to resolve an emergency, which subsequently continue in force long after the emergency is over, being put to various new uses that were never originally contemplated. When the Ku Klux Klan Act was passed to deal with the violence of the Reconstruction Era, it created emergency powers that would not usually be accepted by citizens. For example, it gave the President power to suspend habeas corpus. These emergency powers were temporary, and it was never contemplated that this law would leave behind in its wake a permanent new source of ever expanding power to be wielded by the federal courts over state legislatures. Yet, as Berger shows, “for the better part of a century the Supreme Court had been handing down decisions interpreting the Fourteenth Amendment improperly, willfully ignoring or willfully distorting the history of its enactment.”
In his foreword to the second edition of the book, Forrest McDonald observes that although Berger’s interpretation was predictably contested when it was first published in 1977, those who favor the centralization of constitutional authority soon decided that it does not matter anyway even if the courts have willfully distorted constitutional history. As they see it, it has all been distorted for a good cause – in the service of creating a better world. Progressives see that as a salutary effort on the part of the activist courts. They regard all this power-mongering by federal judges as indeed exemplary, as they believe federal oversight of state authorities is to be welcomed – in their view, credentialled federal judges fresh out of the Marxist law schools are far more trustworthy than the unreconstructed state legislators that the voters of the South might elect. It is an example of a pattern of progressive strategy which is becoming all too familiar – they begin by denying that they have subverted the law, but, when their protestations fail, they soon begin arguing that the subverted law is actually good. It’s not happening, but if it’s happening that’s very good! McDonald explains:
From the outset, the law reviews teemed with attacks on Government by Judiciary, some of them cautious and considered, many slipshod and semihysterical ... So thoroughly did Berger rout his critics that, after a decade or so, they virtually stopped trying. Instead, advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the framers are any longer relevant.
As McDonald argues, Berger’s analysis, first published in 1977, has stood the test of time in showing that the Supreme Court uses the Fourteenth Amendment as a method of “continuing revision of the Constitution under the guise of interpretation.” In doing so, the courts stray far from their constitutional role and take upon themselves the mantle of social and political revolutionaries.