Academe vs. the Founding Fathers

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, as did Justice Harlan. My Government by Judiciary: The Transformation of the Fourteenth Amendment assembled the evidence that undergirds such views, and demonstrated that the Court has exercised a revisory power that the Constitution withheld from it.

That there should be differences of opinion about this view was to be expected. For a generation academicians have been cheering on the Court to ever more heroic feats, and the Court, as former Justice Abe Fortas wrote, has triggered “an economic, social, and cultural revolution.” Since I question, in that book, whether the Court is empowered to act as an instrument of “revolution,” I anticipated that academicians who were enamored of the judicial results—never mind their legitimacy—would vigorously defend the role of the Court. What was unexpected was the denigratory tone of their rebuttals, a tone unworthy of scholarly discourse. But Professor Charles Steinberg has since written that Academe “can be a jungle,” where academicians are driven by “a deadly combination of ruthless ambition and sheer malevolent, sadistic pleasure” in “the demolition of a colleague’s paper or reputation.” As Exhibit I, I begin with Professor Arthur S. Miller.

RB

About the Author

Raoul Berger

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, as did Justice Harlan. My Government by Judiciary: The Transformation of the Fourteenth Amendment assembled the evidence that undergirds such views, and demonstrated that the Court has exercised a revisory power that the Constitution withheld from it.

That there should be differences of opinion about this view was to be expected. For a generation academicians have been cheering on the Court to ever more heroic feats, and the Court, as former Justice Abe Fortas wrote, has triggered “an economic, social, and cultural revolution.” Since I question, in that book, whether the Court is empowered to act as an instrument of “revolution,” I anticipated that academicians who were enamored of the judicial results—never mind their legitimacy—would vigorously defend the role of the Court. What was unexpected was the denigratory tone of their rebuttals, a tone unworthy of scholarly discourse. But Professor Charles Steinberg has since written that Academe “can be a jungle,” where academicians are driven by “a deadly combination of ruthless ambition and sheer malevolent, sadistic pleasure” in “the demolition of a colleague’s paper or reputation.” As Exhibit I, I begin with Professor Arthur S. Miller.