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Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 
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It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on “a continuing revision of the Constitution, under the guise of interpretation.” Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out that “the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power.” This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.
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Amendment 14, Section 1, in part:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (1868)
The 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
No provision in the Constitution has undergone more torture than the due process clause of the 14th Amendment. In the name of due process, the court in the late 1800s and early 1900s struck down all sorts of state economic regulation.  The rationale for all these decisions was that due process had a “substantive element”—that due process protected economic freedoms, such as “liberty of contract”, from legislation infringing upon those substantive freedoms. 
Despite the fact that those rulings have mostly been explicitly or implicitly overruled,  the modern court itself has continued to commit the same sins of its forbearers. Using the rubric of due process, the modern-age court has superimposed its own substantive content onto due process, among other things holding that due process prevents states: from permitting voluntary prayer in schools,  from prohibiting abortions,  from criminalizing distribution of pornography,  from using incriminating evidence (usually drugs) seized without warrant or probable cause,  from using incriminating confessions obtained without having first advised the defendant of a right to a lawyer and a right to remain silent,  from criminalizing flag burning;  and restricting states from imposing the death penalty,  to name some of the more prominent rulings.
One I suppose could agree, as a matter of policy, with the results of at least some of those cases, one ought beware of accepting them as a matter of law, for the “reasoning” in the cases, as I shall attempt to show here, is wholly unsound and has led to all manner of federal intrusion into matters reserved to states and subject only to state constitutional laws. Read more at ...
I like how the discussion pops up from the archives when commenting.
Good job Suzie.
We lost a good, honorable originalist.
The Coming Resurrection of Raoul Berger? A Remembrance of Government by Judiciary
by Stephen Presser