Government by Judiciary is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny. Berger argues that the U.S. Supreme Court is not actually empowered to rewrite the U.S. Constitution – including under the guise of interpretation – and that thus the U.S. Supreme Court has consistently overstepped its designated authority when it used its powers of interpretation to de facto rewrite the U.S. Constitution in order to reshape it more to its own liking. (By de facto rewriting the U.S. Constitution, Berger means that the U.S. Supreme Court didn't actually alter the text of the US Constitution but nevertheless interpreted it in such a way that the U.S. Supreme Court altered the meaning and/or the effects of the relevant parts of the U.S. Constitution.)
Summary
In this book, Berger argues that the Fourteenth Amendment should be interpreted based on the original intent of its draftsmen. Berger argues that this is how the U.S. Constitution was historically interpreted as well as how the draftsmen of the 14th Amendment intended for this Amendment to be interpreted. Berger also argues that the sole purpose of the Fourteenth Amendment was to constitutionalize the Civil Rights Act of 1866. (Berger rejects the use of statements by critics of the Fourteenth Amendment to advance a broad reading of the Fourteenth Amendment by arguing that these statements were made to make the Fourteenth Amendment look terrifying in order to increase the odds that this Amendment be rejected and defeated.) Specifically, the purpose of that Act was to tear down the Black Codes in the post-Civil War Southern U.S. and to give the freedmen basic rights such as freedom of contract, the right to sue and be sued, to travel and work wherever they please, and to buy, sell, and own property. Berger argues that, in the view of its draftsmen, the 1866 Civil Rights Act did not require U.S. states to allow African-Americans to serve on juries, to vote, to intermarry with White people, or to go to the same schools that White people went to. Thus, Berger argues that numerous U.S. Supreme Court decisions based on the Fourteenth Amendment have been wrongly decided since they were decided contrary to the original intent of the Fourteenth Amendment. These decisions include the 1880 case Strauder v. West Virginia (which stated that African-Americans cannot be prohibited from serving on juries), the 1954 case Brown v. Board of Education (which struck down school segregation), the 1960s one person, one vote cases such as Reynolds v. Sims, and the 1967 case Loving v. Virginia (which struck down bans on interracial marriage).