He rejects the notion that the "demands of justice . . must rise above the law," and firmly maintains that courts "were not authorized to revise the Constitution in the interests of 'justice.'
As The Goddamned Supreme Court Is About To Start Up Again
WE ARE SO USED TO HEARING THE BULLSHIT of "originalism" and "textualism" in regard to the Constitution that it would be forgivable if we figured those were the only two means of interpreting the damned thing. That is thanks, in no small part, to the legal theorizing and historizing of a would-be liberal, the once member of the FDR administration, Raoul Berger publishing a book in 1977 with a title readers of this blog should be familiar with, though to a very different purpose and by a very different kind of lawyer, Government by Judiciary. In Berger's book the 1940s era liberal who went on to teach at both Berkeley and Harvard Law I don't trust law professors, especially those who rub shoulders with the likes who teach at such places) Berger slammed the Warren Court for its most storied rulings such as Brown v. Board of Education which declared discrimination in the public schools was unconstitutional.
His specific criticism was based on the Warren Court's reading of the 14th Amendment and its alleged legislative record and the violation of the intent, stated or otherwise, of those who wrote the 14th Amendment. He claimed that because some of the drafters of that amendment specifically denied that it would produce racial equality for the newly freed Black People and those who were not enslaved before the end of the Civil War, that that meant that using the wording of the 14th Amendment and applying it to racial discrimination was a dangerous usurpation of power by the Warren Court to produce a result which Berger, himself, claimed to favor.
I am ALWAYS suspicious of the sincerity of "liberals" who claim to favor such things as racial equality and other liberal causes as their professional and scholarly work seeks, constantly, to undermine that result. I went from a dupe who sent annual contributions to the ACLU on their claims to support equality and civil rights to an implacable critic of it because their actions and, I found out later, their fundraising among corporations belied such claims in the main. And if I don't trust the ACLU I have come to be entirely skeptical of the category "civil liberties lawyer" remembering that Ephraim London, Alan Dershowitz, Bert Neubourne. . . and Kier Starmer all became well known as "civil liberties lawyers." The basis of such two-faced lawyering is the focus of this first post in a series I'm hoping to write dealing with an excellent criticism of the entire ruse of "originalism," that Supreme Court con job also going by the name of "textualism." The claim that the law is blind as to its results, the lie that John Roberts told at his confirmation that he saw his role as a "justice" was to call balls and strikes. I will note that the idea that "justicing" has anything to do with the alleged rules of a game is both disingenuous and consonant with my skeptical disdain for such a notion. Even when that game, itself, is theoretically innocuous.
The back and forth between the critics of that book, some of them far more eminent as historians of the legislative and other records than Berger, and his supporters lasted the several decades left to him. And according to this review in the form of an essay, Dean Alfange jr. says that Berger's extensive citation of and examination of the legislative record presents a very difficult body of evidence for anyone who wants to claim that the 14th Amendment even supports voting equality - as the Supreme Court and subsequent Congresses have said it does, can get past that argument.
My larger purpose is to attack the basis of such an effort, I hold that what long dead men - and they were all men, all white men, mostly if not all affluent, straight, white men of the late 18th and onward - don't have nearly as much that is valuable to us as we govern ourselves centuries on from there as what our own, developed experience of life and our knowledge of the history which they, themselves, could not see because no one sees the history of the present, it hasn't been recorded yet.
The very notion that what was thought (of which we have only what they wanted to admit to thinking and what of that was preserved) should enchain us and, especially, those who they, themselves did injustice to, is not only morally degenerate, it is intellectually vacuous.
Anyway, it is held to be an irony in this is that the supposed liberal, Berger, wrote a book that was immediately taken up by the anti-equality, anti-civil-rights, anti-liberty (in may cases) right so as to turn it into those two massive frauds issuing from the Supreme Court, "originalism" (which, as I've mentioned, Walter Bruggemann noted (un)surprisingly never seems to find what the "justices" asserting it disagree with) and "textualism" which is no less inventive in its creative interpretation than the Warren and subsequent courts have been including those dominated by self-declared "originalists" and "textualists." From "corporate personhood" right down to the creation of "rights" of "religious liberty by corporations that don't have minds and, therefore, don't have religious beliefs or political convictions, etc. all of that bullshit has issued from the "textualists" and "originalists" based on a footnote put into a Supreme Court ruling in 1886 on the say-so of a corporate lawyer, based on nothing in the previous legislative record of the 14th Amendment or, as has been pointed out, anything that would grant it the subsequent power in later rulings by corporate servants on the Supreme Court who gave it that power. Only as I'm very familiar with that kind of secular, formalistic, legalistic "liberalism," a development of the late 18th century corruption of liberalism which was derived from the Law of Moses and the Gospel and Epistles, and I don't find, in the end it's much different from any other lassiez faire notion of "freedom" and "liberty" which ignores or disregards equality and so any notion of "justice" that is worthy of the term. "Justice" under such liberalism has such a way of producing obvious and blatant and, I think it's impossible to not suspect, intentional injustice.
Since I think it is the most telling of the many telling paragraphs in Alfange's essay as to motives in coming to any such conclusion, containing the overriding character, moral and personality defect that controls all such judicial and legalistic politics I'll give it first. It followed a long passage about the definitively evil Dred Scott decision, which Alfange points out, if you take Berger's case seriously and the claims of Taney et al as honest (which they most certainly were not, but more on that another time) you would have to claim that the Dred Scott decision was rightly decided on the claims of Taney as to what he and his pro-slavery colleagues were doing and the 1934 Home Building and Loan Association v. Blaisdell ruling which legalized states giving temporary mortgage relief during some of the worst years of the depression, was a terrible miscarriage of justice, Alfange points out:
For [Raoul] Berger, however, the fact that his principle of constitutional interpretation might have harsh results is of little consequence. He rejects the notion that the "demands of justice . . must rise above the law," and firmly maintains that courts "were not authorized to revise the Constitution in the interests of 'justice.' Courts are only empowered to apply the law, not to revise it, and [r]espect for the limits on power are[sic] the essence of a democratic society; without it the entire democratic structure is undermined and the way is paved for Weimar to Hitler." This type of hyperbole repeatedly mars Berger's argument. It is difficult to see the seeds of the transition "from Weimar to Hitler" in Chief Justice Hughes opinion in the Blaisdell case, or in Chief Justice Warren's opinion in Brown v. Board of Education, which is, for Berger the crowning example of the Supreme Court's disrespect for the limits on judicial power.
In the far more relevant history of the United States in which slave-holders and their allies in politics and the law, white-supremacists, are our own, long powerful, often dominating - sometimes dominating the entire history of many states such as Mississippi and Alabama - version of "Hitler" on behalf of whom a "liberal" like Raoul Berger is prepared to argue, you will forgive me if I take his concern about fascism abroad or here to be less than serious. White supremacy is the American form of fascism, one which was already present and dominant at the time of the framing of the Constitution, inserted directly into it and determining structures of government that we are saddled with even today, and which was still powerful enough as the 14th Amendment was being drafted that any politician who wished to see a super-majority of state legislatures (almost all of which were either dominated by white supremacists or had a significant and powerful faction of them) adopt the Amendment would have had to deny any motives of writing equal justice for Black People and other minority groups into the Constitution.
That a "liberal" lawyer in the very years that the backlash to the mid-1960s civil rights laws was gaining power, as the Nixon appointees to the Supreme Court were in the ascendancy, could write such a book tells me all I need to know about the hypocrisy of such lawyerly "liberalism." And I will say that I think such, along with his hegemonic view of the virtue of "originalism" dominates the education and thinking and certainly public discourse about the Constitution and the law today.
I think it's as close to a law as any observation about human culture can get that any indifference to justice, especially among those who claim to be in the business of producing it leads to the same bad results no matter what "legal or judicial philosophy" they use as an excuse. And I think that indifference is an absolute determinant that their goal is injustice. Even when it's a "liberal" who claims to feel differently.
Alfange continues:
It is generally possible to distinguish between sincere efforts to achieve justice and disingenuous attempts to rationalize corruption; if such a distinction could not be made, there would be no effective way of evaluating law except by majority vote - a process that may, under certain circumstances, be precisely what heads the way from Weimar to Hitler. [ It did in Germany, it did here in 2024.] There can be no doubt that the lessons of the half-century from 1887 to 1937 teach that there may be great costs in a system of law in which judges feel free to disregard the intent of the framers of the Constitution and to rely instead on their own views of what the Constitution ought to say, and Berger has learned those lessons well. But, as decisions like Dred Scott demonstrate, there may also be great costs in a system of law in which judges mindlessly apply the putative intention of the architects of the Constitution without regard for the injustices that they may thereby be perpetuating. Yet in Berger's view, nothing less than the rule of law is at stake, and like Justice Robert Jackson, he rests his case on the proposition that '.the rule of law is in unsafe hands when courts cease to function as courts and become organs for control of policy.'
I don't for a second, having reviewed the record of those who supported the Dred Scott decision and the two who dissented think that there was anything like a disregard for the injustices that they were perpetrating, Taney and his majority in that decision favored the maintenance and extension of slavery. Injustice was their goal as it was in John Marshall's record of uniformly voting in favor of slavers, slave-catchers and even those who imported slaves illegally in the period after the Constitution, itself, gave Congress the power to outlaw that vile practice. As I mentioned, Scalia never found any "original intent" that wasn't entirely consonant with his preferences nor have any of the rest of the "origianlists" or "textualists" in the entire history of the Supreme Court. The idea that having a "judicial philosophy" such as "originalism" or "textualism" is any kind of a protection against such impositions of a "justicie's" self-interest onto the Constitution in exactly the ways that Alfange notes is possible is absurd.
As with the proponents of the various schools of quantum physics, all the side they come down on amounts to is which side of their professional ideology they adopted as their own. It is, in itself, a guarantee of such imposition of self-interest in the name of objectivity. I share Senator Whitehouse's skepticism of judges and judicial nominees who declare they have a "judicial philosophy." Someone who is so unaware and uncritical of their own thinking that they believe their declaration of ideology is a guarantee that their use of it in decision making is somehow impersonal and objective is at least a fool and I think it's generally far more dishonest than that.
About the only decision I believe was ever written by someone who was allegedly strongly against the result they promulgated in a Supreme Court ruling was among the worst decisions ever produced, that of Joseph Story in the Prigg case which earned him the well earned hatred and disdain of slaves and those who opposed slavery during his lifetime and ever more. If that's the kind of thing that comes from the practice of "originalism" as, indeed, Berger said the continuation of racial discrimination and segregation he claimed to oppose SHOULD HAVE RESULTED FROM THE BROWN CASE then "originalism" is a moral abomination and such a Constitution or legal ideology that demands it is an evil that should be abolished by any means necessary.
I will point out that elsewhere in his essay, Alfange notes that there is nothing, absolutely nothing in the Constitution that calls for or mandates an "originalist" or, I'll add "textualist" reading of the Constitution by the Supreme or any other court. Much like the doctrine of Marbury style judicial review, it is unconstitutional in the very real sense that it is extra-constitutional, an imposition by later lawyers on it. So on the very claim of the ideology, it should have no such a place in the deliberations of a strictly "origianalist" court. It's one of those ideologies that contains its own contradiction. I will also point out that Alfange's essay says that Berger, unlike the man whose title he cribbed, Louis Boudin, accepted the Marbury usurpation of the Court overturning duly adopted federal laws. Which leads directly into the next problem with the "originalist" ideology.
The overriding concern of Berger's book is to ensure the exclusion of the courts from the policymaking process. However, a major problem with the book is the lack of congruence between his concern and the "original intent" rule of constitutional construction. In the first place, the rule would do far more than limit judicial power; it would also deny the authority of Congress, as the legitimate policymaking branch, to make an ambiguous grant of power serve an imperative national need. Thus, if it was not the intent of the drafters of the Fourteenth Amendment to forbid racial segregation or racial discrimination except with respect to those areas enumerated in the Civil Rights Actoof 1866,, strict observance of the "original intent" rule would mean that an act of Congress, passed pursuant to section five of the amendment, that sought to enforce the equal protection clause by forbidding even state-mandated segregation, would be unconstitutional. Under Berger's conception of judicial review, the Supreme Court could not passively uphold the law by deferring to the judgement of Congress. On the contrary, it would be the responsibility of the Court to declare such a law invalid because of its inconsistency with the original intent of the framers of the Fourteenth Amendment. Moreover, since it is obviously possible for courts to find a spurious "original intent," Berger's rule of interpretation would allow judges to interpolate their own policies into the Constitution by first interpolating them into the intentions of the framers. Indeed that is exactly how the Supreme Court has often used the "original intent" rule. Ironically therefore, Berger's rule has the potential to become a vehicle for the expansion, not the contraction of judicial power.
That has certainly expanded enormously in the period after 1977 when the book was written and after Alfange wrote his essay. The Rehnquist and in an even more radical manner, the Roberts Court has done exactly what Berger condemned and the uniformly Republican-right-wing "origianlists" and "textualists" claimed to be against. The radical fascism of the unitary executive theory which dominates the Roberts Court not only makes the Supreme Court superior to the Congress, it has delegated dictatorial powers to negate duly enacted laws and abridging parts of the Bill of Rights to Donald Trump. All of the claims made during their confirmation hearings and before were clearly and obviously lies, just as I noted that Roberts and Alito lied through their teeth during their confirmations when they claimed to have no settled decisions in their minds on a whole range of hot issues and those which their ideology mandated the decisions on which they have since written or concurred with. I don't trust a lawyer to tell the truth on much of anything but lying under oath by members of the Supreme Court has become common place, certainly when they have been nominated under the sponsorship of the Federalist fascist Society.
Furthermore, Berger's reliance on adherence to the rule of law as the basic premise of the argument against constitutional change through judicial reinterpretation begs a fundamental question. It does no violence to the rule of law to change existing laws. If the Supreme Court may legitimately construe the Fourteenth Amendment as prohibiting racial segregation, even if that prohibition is not within the original intent of the framers then such a construction itself becomes the law and is entitled to respect under the rule of law. The rule is violated only if the procedure by which the change is made is illegitimate. But expansive construction of a constitutional provision by the courts can only be rejected as illegitimate if it is first determined that all judicial interpretation of the Constitution is a matter at variance with ascertainable original intent of the framers is impermissible regardless of both the enormous societal changes that may have taken place since the framers spoke and the fact that the interpretation may be entirely consistent with the actual language that the framers utilized in drafting the constitutional provision in question. If such judicial interpretation is not inherently impermissible, then there is no illegitimacy in the procedure by which the law is changed, and thus no deviation from the rule of law. There is, therefore, a deep degree of circularity in Berger's argument. Judicial interpretation of the Constitution that is inconsistent with the precise intentions of the framers is intolerable because it violates the rule of law, and it violates the rule of law because it is inconsistent with the intent of the framers.
I think the most useful question in all of this is why what long dead People in 1865 or 1787 thought or said should determine what the Constitution we have to live with means. That is the answer to the seemingly terrible news of Raoul Berger's argument in the beginning of his book and which decades of right-wing and middle-of-the-road and, yes, "liberal" blather about the Constitution leads us to.
The superstition that we are bound by the ideas of the late 18th century Federalists or what the drafters of the 14th Amendment had to say to sell it to enough state legislatures, in 19th century, racist America in order to get it adopted said about it IS NOTHING THAT WE MUST ACCEPT. They're all dead. There isn't any reason to let their long dead experience and the injustice they were willing to practice or had to take into account to get an amendment passed determine what our lives are bound by, today. Certainly there is no reason for Black People, Native Americans, other People of Color, Women, Workers, LGBTQ_ People - in short THE MAJORITY OF LIVING AMERICANS IN 2025 TO HAVE THEIR LIVES BOUND BY THE IDEAS OF THOSE LONG DEAD PEOPLE. There is certainly nothing asserted by any "originalist" or "textualist" I've ever heard or read who holds that corporations should be bound by the entirely absent legislative record supporting the fiction of their "person-hood" and the even more absurd notion that they have religious and ideological rights that override the right of all members of the public to supposedly public accommodations or even public service by public servants. It has been noted that the word "corporation" appears nowhere in the Constitution or Bill or Rights yet the "originalists" have put it there in reality.
Nevertheless, debates over legislative history and the originally intended meaning of ambiguous texts never cease. Although most of the scholars whose interpretations of the Fourteenth Amendment Berger most vigorously attacks are now deceased and thus unable to offer rebuttals, there is so much available historical material pertaining to the adoption of the amendment and to the history of the Reconstruction era, and so may alternative ways in which that material may be interpreted that it is certain that Berger will not be allowed to have the last word. Yet the fact remains that his historical argument is very powerful. Those who wish to challenge it will confront a formidable task in light of the volume and persuasiveness of the evidence he has amassed in support of his position.
His "historical" argument is "very powerful" only if you accept the premise that we are bound by the thoughts and ideas of long dead, affluent, white men who routinely did injustice to Black People, Native Americans, Women, Workers, LGBTQ+ and many others. There is no obligation by any of us to accept that premise and there is no reason for us to accept it that overrides our own right to equal justice and equality.
Again, why should any Black Person, Woman, LGBTQ+ Person, any Native American who was excluded from citizenship by the goddamned Constitution WITH THE 14TH AMENDMENT IN IT UNTIL 1924 care at all about that record and why shouldn't all of the above and others reject it as limiting their rights and freedoms and full equality? I can guarantee you that if the "originalism-textualism" bull shitters like Clarence Thomas, Amy Coney Barrett or any of the others faced an aspect of discrimination or denial of rights on the bases of the ideas of the slave-holders of 1787 or the opponents of Women's suffrage and equality in 1865 and whatever legislative or epistolary record they left of their thinking on any question of their equality, they would certainly hold that "that was different." Though, as can be seen by both of those hypocrites, when it comes to issues of equality concerning their own identity that they are indifferent to, they are all-in on that being the excuse for denying equal justice under law.
I have every confidence that Raoul Berger would have seen it differently if he was a Black Woman who worked a low-paying job hired by an employer who abused and cheated her, and let's make him a Lesbian or Transwoman, as well. That he was OK with the result he claimed do not favor becoming the actual status quo under his ideology, it's clear he figured HE wasn't at the risk he was willing to put myriads of others to. I find that to so often be the case with "civil libertarians" and "civil liberties" lawyers and their ilk. Certainly most of the members of the Supreme Court, including those who are members of such disadvantaged minorities, at least when they're Republicans.