To the Editor:
I would like to reply to Elliott Abrams’s review of my book, Government by Judiciary: The Transformation of the Fourteenth Amendment [Books in Review, December 1977].
“The most immediate constitutional crisis of our present time,” wrote Professor Philip Kurland, is “the usurpation by the judiciary of general governmental powers on the pretext that its authority derives from the Fourteenth Amendment.” Almost fifty years earlier, Justice Holmes expressed the “more than anxiety” he felt because
As the decisions now stand, I see hardly any limit but the sky to the invalidation of [the constitutional rights of the states] if they happen to strike a majority of this Court for any reason as undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.
Time and again Justice Black inveighed against the Court’s unconstitutional exercise of the amending power. And after an “overpowering” demonstration that suffrage was excluded from the amendment, Justice Harlan declared with respect to the Warren Court’s “one man-one vote” rule that “when the Court disregards the express intent and understanding of the framers, it has invaded the realm of the political process to which the amending power was committed.”
My book assembled the evidence that undergirds such views, and demonstrated that the Court has exercised a revisory power that was withheld. In his review, Mr. Abrams ignores such testimony, and even weightier historical evidence, preferring to rely on generalities uttered by commentators.
In defense of the Court’s exercise of the amending power, Mr. Abrams invokes Ralph Winter:
A written constitution with difficult amendment procedures strongly encourages the body politic to add to the document only general declarations . . . leaving room for growth and change in the light of history.
Since the Constitution does not “grow” like a rubber plant, this obliquely suggests that the framers provided for judicial change as a substitute for the amendment process. Nothing, as my study demonstrated, was further from the minds of the framers of the Fourteenth Amendment than a blank check to the Court, which they distrusted. They did not intend by the “general” words “equal protection” to authorize, for example, judicial revision of their exclusion of suffrage from federal control. It took the Fifteenth Amendment to check denial of suffrage on racial grounds.
As regards the Founders, Elbridge Gerry declared: “The people have [directed] a particular mode of making amendments which we are not at liberty to depart from.” In Hamilton’s great defense of judicial review, he affirmed that the Constitution is binding
until the people have, by some solemn and authoritative act, annulled or changed the established form . . . and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.
Chief Justice Marshall stated that the judicial power “cannot be the assertion of a right to change that instrument,” e.g., to take over control of suffrage that was designedly left to the states
In truth, a “written Constitution” was employed precisely in order to limit the exercise of delegated power. The Founders were committed to a “fixed Constitution” and were fearful lest their delegates “overleap its bounds.” History confirms Justice Black’s statement that the struggle for a written constitution was “to make certain that men in power would be governed by law,” not by the “law of judges.” He dismissed the idea that “the Constitution must be changed from time to time and that this Court is charged with the duty to make those changes. . . . The Constitution makers knew the need for change and provided for it.”
Mr. Abrams sets up a straw man when he says: “If the document should come to be amended frequently, if it should become little more binding than mere statutes, how strong a bulwark would it remain?” Yet the very requirement of submission by two-thirds of the Congress and ratification by three-quarters of the states disposes of this argument, for it has kept the number of amendments in check for almost two hundred years. It is the Court, rather, that has made frequent amendments, without disclosing that it is doing so, as is revealed by its rebuff of Justice Jackson’s plea in the desegregation case that the Court tell the people that it “is declaring new law for a new day.” Amendments by the people, no matter how numerous, are at least constitutional. Whereas the undisclosed judicial amendments are not.
Mr. Abrams next appeals to Alexander M. Bickel’s rejection of the view that “the Constitution is thought to embody a clear and certain yardstick.” The framers’ exclusion of suffrage from the Fourteenth Amendment is “clear” enough; but Bickel instanced “due process of law,” which, to be sure, has become “conveniently vague” through judicial manipulation. But for Hamilton the phrase was crystal clear:
The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.
No statement to the contrary will be found in any of the constitutional conventions, in the first Congress which first employed the phrase, or in the 1866 debates of the framers of the Fourteenth Amendment. Mr. Abrams himself testifies to the Court’s misapplication of “due process,” originally limited to judicial procedure, for the purpose of stifling economic legislation, e.g., when it “struck down even wages-and-hours laws,” a practice now acknowledged by the Court to be discredited.
To refer to Jefferson’s reminder that “jealousy” of power “prescribes limited constitutions to bind down those whom we are obliged to trust with power,” to bind them “down from mischief by the chains of the Constitution,” is in Mr. Abrams’s opinion to view the Constitution “rather like a prison.” But the Founders had a deep-seated fear of power, of its greedy appetite for expansion, and sought to “fence” it about. Mr. Abrams would strike those bonds by giving the Court a blank check to rewrite the Constitution. If, however, the Constitution is to mean only what any five members of the Court choose to make it mean, then it is indeed “a thing of wax,” no longer the bulwark of liberty it was designed to be. I cheerfully acknowledge that “social policy is left by the Constitution to the people, not the courts,” and with Judge Learned Hand I reject rule by nine “Platonic Guardians.” Such is my faith in democracy that I consider that were the people permitted an informed choice between the “prison” . . . and a freewheeling Court that imposes its will upon them, they would opt for the Constitution.
My insistence that the limits on judicial power must be sought in the “intention” of the framers—what other limits are there?—is countered by Mr. Abrams with the argument that resort to that “intention” was utterly discredited by Chief Justice Taney’s argument in the Dred Scott case that blacks could not be considered citizens under the Constitution since they were not so considered when the Constitution was written. It was not resort to the framers’ “intention” that was a “disaster,” but the Court’s attempt, in the words of Samuel Eliot Morison, “to settle the question of slavery in the territories by extending it legally to all the United States territories.” Its intervention in an explosive political issue, said Bickel, led to the Civil War, and that, rather than resort to “intention,” which to this day the Court purports to invoke, should be the lesson of Dred Scott. Settlement of divisive political issues is for the people or their political representatives, not the Court. It needs to be emphasized that the Court, unlike its apologists, has never openly laid claim to a power to amend the Constitution. Instead, as former Solicitor General Robert Bork wrote: “Value choices are attributed to the Founding Fathers, not to the Court.” And, as he observed, such statements indicate appreciation of “what [the Court] thinks its customers [the people] demand.”
A moment of illuminating candor deserves to be noted: Mr. Abrams perceives that my “liberal fans,” who eagerly resorted to my studies of impeachment and executive privilege (wherein I built on the “intention” of the Founders) when they sought to topple President Nixon and pierce the deepening cloud of executive secrecy, should have understood that I am a “fundamentalist.” My fault then is that I measure the powers of the Supreme Court by the same test I applied to those of Nixon, the “intention” of the Founders. To do otherwise is to apply a double standard for the realization of disparate political aims, a tactic that may be well enough for a politician but is unworthy of a scholar. My analysis, states Mr. Abrams, again relying on Winter, lines me up with “those who would have impeached Earl Warren [rather] than with those who would impeach Richard Nixon.” Winter has since removed the taint of moral leprosy by recognizing “the large body of academic criticism which argued that the Warren Court was essentially undemocratic because it . . . rewrote law according to the personal values of its members.” To “rewrite law” is to usurp legislative power and subvert the Constitution, the paramount impeachable offense. It was Hamilton, no less, who reassured the Founders that judges would not engage in “deliberate usurpation on the authority of the legislature” because they could be impeached. And President Taft declared in 1911: “Make your judges responsible. Impeach them.” Such historical facts are not washed out by associating me with the “impeach Warren” Birchers. Nor should scholarly discourse be discolored by McCarthyism but should proceed from a sober evaluation of the facts.
Finally, since Mr. Abrams impeaches my credibility as a scholar, labels me as “lacking in wisdom,” as an “inadequate” constitutional theorist, largely in reliance on Alexander M. Bickel, I may be indulged for citing Bickel’s quite different opinion. Bickel, with whom I had ventured in an earlier study of judicial review to differ on ten or more important points, wrote with his usual intellectual honesty and generosity that “[Berger] is always deeply informed and powerful, and altogether convincing . . . a distinguished work.” To differ on great constitutional issues is not necessarily a sign of intellectual imbecility.
Raoul Berger
Concord, Massachusetts
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Elliott Abrams writes:
In my review, I wrote of Raoul Berger’s “considerable intellectual integrity” and his “scholarship and integrity,” but concluded that due to his extreme strict constructionism he was “utterly inadequate” as a constitutional theorist and “lack[ed] the wisdom” imparted by the late Alexander M. Bickel’s phrase, “We do not confine our judges, we caution them.” While it is to be expected that Mr. Berger would not send copies of such a review to his friends, his reaction seems to me a bit overdone, and is in at least one sense slightly misleading.
Mr. Berger seems to feel himself accused of all sorts of sins, ranging from inconsistency to, of all things, “intellectual imbecility,” and this may explain his strong rejoinder. What is not so easy to explain, however, is where he finds those accusations in my review.
And what is slightly misleading in Mr. Berger’s letter is his suggestion that unless one accepts his view of the Constitution, there can be no constitutional limits at all. Thus, he implies that I am an apologist for every decision of the Warren Court, which I am not, and he states that if we do not bind the Court in the chains of the Constitution, we are “giving the Court a blank check” to rewrite it, thus making of it “a thing of wax.” Metaphors aside, it is my view that this either/or proposition is false. One may be greatly concerned about the exercise of judicial power—as I, for one, am—without adhering to the rather extreme position of Mr. Berger, according to which any and all constitutional interpretations are tantamount to illicit amendments of the Constitution by the Justices. Mr. Berger wrote in his book, and repeats here, that the only legitimate mode of constitutional interpretation is the search for the precise intent of the framers, for, he says, “what other limits [on judicial power] are there?” But in fact there are limits to judicial self-aggrandizement in our system. Congress, to take one example, has very broad power over the jurisdiction of the federal courts; and indeed it was Congress—and not the Constitution—that created the district courts and courts of appeals. Similarly, one need not believe that the Court follows the election returns to realize that popular opinion, too, provides restraints on the Court’s power.
There is, of course, an inherent tension between judicial power and popular democracy, but that tension is not so much a threat to our liberty as a wellspring of it. This Mr. Berger still seems unwilling to admit, for he sees virtually any significant exercise of judicial power as a step on the road “from Weimar to Hitler.” I would therefore restate the position I took in my review: in the search for what Bickel called “a rigorous general accord between judicial supremacy and democratic theory,” Mr. Berger offers no assistance.
A final word on Alexander M. Bickel. I do not know, since Mr. Berger does not tell us, in what precise context Bickel referred to Mr. Berger as “altogether convincing.” Bickel’s own works, however, make clear that his position, which is based on subtle and brilliant interpretations of the Constitution, could not be accommodated in Mr. Berger’s learned, highly intelligent, yet entirely mechanical search for the exact intentions of the framers a century or two ago.
