The Fourteenth Amendment and the Bill of Rights

Rating:
Summary: A valiant, but unsuccessful attempt
Review: As the title indicates, this book is yet another examination of the meaning of the 14th Amendment, with a specific focus on the so-called "incorporation" theory which holds that the Amendment makes the Bill of Rights applicable to the states. Berger is a well-known proponent of "original understanding" in constitutional interpretation, and his view is that the 14th Amendment was meant to have a very narrow meaning, that modern judicial exegesis of the Equal Protection and Due Process Clauses is without historical foundation, and that the Amendment was not meant to apply the Bill of Rigths to the states. His most developed arguments on the historical evidence are given in a previous work, "Government by Judiciary," which is quite possibly the most excoriated book in the history of constitutional law. The present book is partly a response to some of Berger's critics and then a rehashing of some of the historical evidence. Though one is forced to feel some sympathy for Berger, who has always come across as somewhat of a maverick scholar, his works usually end up being somewhat historically myopic, failing to look at events in their proper overall context. This book is no exception. A better place to look for an examination of the 14th Amendment and incorporation is Akhil Amar's "The Bill of Rights," a more subtle and challenging treatment of the subject.

Rating:
Summary: Cold hard logic
Review: Berger was politically a liberal, meaning that he favored centralized government control of the lives of the citizenry. He was an honest liberal, however, and, based on his sound scholarship, rejected the self-defeating notion of a constitution which is "living," i.e. a written law which is not law, but whim. Predictably, Berger was reviled by his fellow liberals. This is despite the fact that he was praised highly for books on impeachment and executive privilege which, by mere coincidence, were published when Nixon was being run out of Washington. Born in Russia, brought to the U.S. as a boy, Berger did not publish a book until age 68. His work on the 14th Amendment is a masterpiece of American legal scholarship.