Government By Judiciary Essay

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In Government by Judiciary, Raoul Berger argues that the legislative debate regarding the Fourteenth Amendment and its clauses reveal that the equal protection clause was intended to prohibit only racially partial state legislation that affects specific civil rights concerning the security of person and property. Berger urges that this conservative or narrow reading of the framers' intent should limit review under the Fourteenth Amendment of all claims of racial discrimination and that any broader judicial interpretation of the equal protection clause, as in the 1954 school desegregation ruling in the Brown v. Board of Education decision, usurps the policy making functions vested in Congress. According Berger the powers should be reserved to the states and to the citizens of those states. Berger's thesis is not a new concept because of the historic Plessy v. Ferguson�(1896) U.S. Supreme Court decision in that upheld the�constitutionality�of�racial segregation,�even in public accommodations, under the doctrine of "separate but equal" doctrine derived from the Fourteenth Amendment. Today this reading of the Fourteenth Amendment would immunize much official racial discrimination from judicial scrutiny and challenge the legitimacy of many court decisions that protect racial minorities from the tyranny of the majority's abuse and neglect. Berger's interpretation of the 14th Amendment and should be discussed and critiqued regarding segregation due to its influence and implications on politics and law today.

According to Berger, Brown v. Board of Education is unconstitutional due to the notion that schools are not within the limited scope of the Fourteenth Amendment, and the requirements of equal protection are satisfied by separate but equal facilities. Thus, the major surprise of Berger's book is not that it criticizes Brown, but that it never addresses the propriety of the Supreme Court's 1896 decision in Plessy v. Ferguson. Unlike public schooling, freedom of movement on a common carrier is arguably within the fundamental rights recognized by Berger, and is thus protected by the equal protection clause. Although Berger's literature on the separate but equal question implies that Plessy was nevertheless correctly decided, he does not forthrightly state that conclusion. Plessy was the Court's response. The Court assumed that the Fourteenth Amendment applied to the case before it, treated the question whether separate is equal as one of fact to be decided by the Court, and found that state-mandated segregation in railroad cars was constitutionally permissible because it did not discriminate against blacks. A further analysis of the first section of the Fourteenth Amendment is needed to pin point Berger's views. Ratified in 1869, the 14th Amendment prohibits states from abridging the "privileges or immunities" of citizens, or depriving them of the "equal protection of the...

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