We the People: The Fourteenth Amendment and the Supreme Court

By Michael J. Perry | Go to book overview
Save to active project

3
The Fourteenth Amendment: What
Norms Did "We the People" Establish?

As I said at the beginning of the preceding chapter, several of the most divisive moral conflicts that have beset us Americans since the end of World War II have been transmuted into constitutional conflicts -- conflicts about what the Constitution of the United States forbids -- and resolved as such. The particular constitutional conflicts I examine in this book -- over racial segregation, race-based affirmative action, sex-based discrimination, homosexuality, abortion, and physician-assisted suicide -- are, in the main, conflicts about what the Fourteenth Amendment forbids. What Raoul Berger wrote in 1977, in Government by Judiciary: The Transformation of the Fourteenth Amendment, is no less true today: "Because the [Fourteenth] Amendment . . . furnishes the chief fulcrum for [the Supreme Court's] control of controversial policies, the question whether such control is authorized by the Constitution is of great practical importance." 1

Some constitutional scholars -- most famously, perhaps, Robert Bork -- have concurred in Berger's unequivocal judgment that the Fourteenth Amendment authorizes little if any "such control". ( Berger has delivered that judgment in many venues, but nowhere more prominently than in Government by Judiciary.) In 1989, in The Tempting of America: The Political Seduction of the Law, Bork argued at length that section one of the Fourteenth Amendment has been, in the hands of the modern Supreme Court, an instrument of "judicial imperialism". 2 In 1996, citing recent Fourteenth Amendment decisions by the Court, Bork declared that "[t]he most important moral, political, and cultural decisions affecting our lives are being steadily removed from democratic control."3 According to Bork, the justices of the Supreme Court have been "behaving like a 'band of outlaws.' . . . An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done." 4 Referring mainly to Fourteenth Amendment decisions, the editors of the periodical in which Bork 1996 essay appeared commented on "troubling judicial actions that add up to an entrenched pattern of government by judges that is nothing less than the usurpation of politics. . . . Again and

-48-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
We the People: The Fourteenth Amendment and the Supreme Court
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 280

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?