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Vol 23 No 5 May/June 2018

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Government by Judiciary 2nd ed

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Raoul Bergerformerly Charles Warren Senior Fellow in American Legal History, Harvard University, USA

ISBN13: 9780865971431
ISBN: 0865971439
Published: July 1997
Publisher: Liberty Fund, Inc
Country of Publication: USA
Format: Hardback
Price: £18.95

Originally published in 1977, this book launched a national debate on the proper role of American courts that has continued down to the present. One of the first constitutional scholars to question the growth of judicial activism in modern America, Berger contended that the United States Supreme Court, throughout most of the 20th century, has been engaged in a ""continuing revision of the Constitution, under the guise of 'interpretation', that has subverted our democratic institutions."";The book asserts that ""the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the justices, who are virtually unaccountable, irremovable and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power."";This transformation, as Berger demonstrates, has been accomplished by ignoring or distorting the original intent of both the framers and backers of the Fourteenth Amendment. In the school de-segragation and legislative re-apportionment cases, for example, the Court manipulated the history, meaning and purpose of the Equal Protection Clause in order to achieve the desired political result. In cases involving First Amendment freedoms and the rights of the accused, the judges converted the Due Process Clause of the Fourteenth Amendment into a vehicle for the nationalization of the Bill of Rights. These ""usurpations"", argues Berger, take ""from the States a power that unmistakably was left to them."";Berger supports his carefully reasoned analysis through an examination and review of the legislative history of the Fourteenth Amendment. This edition includes the original text in its entirety, to which the author has added extensive supplementary discourses that assess and rebut the responses of his critics.

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