The Appraisal of Real Estate Sixth Edition

Raoul Berger's book is simply the finest work of American legal history there is. It bravely takes up a completely politically incorrect subject and arrives, after exhaustive examination of all of (and only) the relevant sources, at the necessary conclusion. It is written in straightforward prose, and it is simply jammed with fascinating information. Even the footnotes (yes, they are where they belong, NOT at the back of the book) are an intellectual feast. When I read this book, I was no kind of expert, merely a graduate student in public affairs at the LBJ School at UT-Austin. In a short time, this book literally made a revolution in my outlook. It is extremely powerful, always timely, and worth coming back to again and again. My graduate students in American Constitutional History came to the same conclusion. This is why I relied on it extensively in The Politically Incorrect Guide to the Constitution (Unabridged), where I called it "A Book You're Not Supposed to Read."

~Government by Judiciary: The Transformation of the Fourteenth Amendment~ by jurist Raoul Berger is a serious challenge to the American ideology of judicial nationalism, which has incrementally aggregated the power of interpreting laws, into law-making power itself. The U.S. Supreme Court has become little more than a junior-varsity Congress, prone to innumerable social engineering schemes, and often against the popular will of the American people. The reign of judicial activism was born in a dubious incorporation doctrine. Raoul Berger offers compelling evidence about the intentions animating the intentions of the framers and ratifiers of the original Fourteenth Amendment, and he demonstrates how it did not countenance the present doctrine of incorporation at all. The States are the most integral ingredient to the federal polity. "The framer's political theory was immediately concerned with organization, not individuals... with principles of power allocation," notes Robert Nagel, and in disapprobation he laments "a widespread pattern that inverts the priorities of the framers; an obsessive concern for using the Constitution to protect individual rights." As jurist Louis Henkin remarked, "the Constitution said remarkably little about rights" since the federal government "was not to be the primary government... governance was left principally to the States." Jurist Michael W. McConnell remarks the "framers of the Constitution and the Bill of Rights believed that state governments were, in some vital respects, safer repositories over individual liberties than the federal government." The original Constitution, and its succeeding Bill of Rights, properly construed does not affirm any positive grant of rights at all. Its salient point was that it embodies a limitation upon the powers of the general government by virtue of delegation. The people themselves grant power to the institutions of government, entrusting it with only certain powers requisite for its operation, and trusting it with no more powers than those granted. The Rights of the Englishman antedate the Constitution, which is not presumed to grant people their rights; and indeed the U.S. Bill of Rights opens with the phraseology, "Congress shall make no law..." which itself is a negative. Hence, one of the duties of the federal authority was to refrain from interference with individual rights and leave their preservation to the people in their established communities among the several states. The problematic incorporation doctrine which was read into the Fourteenth Amendment has arguably turned the whole constitutional structure on its nose. It has acted to solidify the de facto role of the U.S. Supreme Court as the final arbiter of the constitutionality of federal, as well as state legislation. This reality has been much to the detriment of the states and people thereof. For as former U.S. Attorney General Edwin Meese proclaimed in 1985, "nowhere else has the principle of federali

This amazing work of scholarship explains in great detail that the courts powers of enforcement are very limited. It is unfortunate that people confuse this book to mean that segregation had to stay. All Raoul Berger states is that proper authority to enforce a limited form of civil rights lays with the more democratic branches of government. It is clear that this originalist interpertation of the fourteenth amendment was still violated by segregation (not to mention the 15th amendment) but Congress not the Supreme Court was meant to enforce these rights. For instance in this book's footnotes, especially footnote 34 in chapter 12 he supports certain federal civil rights statutes passed after 1964. This book is a great legal read, but must be thoroughly read (especially the footnotes) to understand the overall conclusion of it's author. Something that readers on the political left and the political right sometimes fail to do.

Yes, "Brown" was indeed wrong, if wrongness is judged by adherence to the Constitution, at any rate. More important, the Bill of Rights was never intended to apply to the States, but as a check against the power of the federal government. Berger is entirely consistent with the Constitutional understanding of those checks embodied in the Bill of Rights. Second, there are no such things as "civil rights." Wake up. All rights mentioned in the Constitution, if you assume that the Constitution is what it says it is, are given by a Creator (thus the "Liberty" mentioned in the Constitution is one of that Creator's "Blessings"). "Civil rights" are man-given, and man-taken-away; as such, they are worthless. "Civil rights" is chiefly a shibboleth emanating from the illegal 14th Amendment. In short, the Bill of Rights is not worth the paper it was written on if it were to apply to the States.

Regardless of liberal, revisionist history, the Fourteenth Amendment was never intended to be, nor was it used by, its ratifiers to enforce thorough-going racial equality in the United States. To the contrary, the Amendment was designed to give newly emancipated slaves equality under protective laws, not equal application of all laws. In laymans terms, the Amendment guranteed minimal civil rights (the rights to enter into and enfoce contracts and police protection, but not full social or political rights. Thus, even progressive Northerners did not see state-mandated segregation as violative of the Amendment in any way. And, contemporaneous Jim-Crow legislation, both northern and southern alike, demonstrated this original, limited understanding of the scope of the Amendment. Evil the Amendment may have been in its lack of breath, but its shortcomings were caused by the rampant racism endemic to the United States at that time, both in the North and South alike, not by Berger. To the contray, Berger merely has had the courage to stand up against contemporary, PC, soft tolitarianism and state the undeniable historical facts regarding the original meaning and application of the Fourteenth Amendment and contrast this to the more recent, revistionist reinterpretation and applications. Looking to the bigger picture, what Berger does is challenge us to ponder whether going to all the fuss and bother of amending the Constitution to go beyond the very limited, original goals of the Fourthment Amendment might not have been a better course than giving the Supreme Court a quick-and-easy constitutional blue pen. BTW, the "Pure Evil" review is pure crap.