"It is easier to make certain things legal than to make them legitimate."
The evisceration of the federal system by the Supreme Court during the last few decades—indeed, most of the modem malfeasance of that august body—has been accomplished largely through the instrumentality of the Fourteenth Amendment. This sorry tale, from the adoption of the amendment to recent court decisions, has been chronicled by a number of scholars, the doyen of whom is Raoul Berger. Three of Berger's works are indispensable and indeed one would think definitive: Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), Selected Writings on the Constitution (1987), and Federalism: The Founders' Design (1987). A new challenge to Berger's scholarship has recently appeared, however, forcing him to rise to the occasion once again.
Before dealing with the challenge and with Berger's response, it will be well to review the amendment and its history. The crucial phraseology comes in its first section, which begins by overturning the Dred Scott decision. That is, it grants national and state citizenship to all persons (including blacks, contrary to the Dred Scott ruling) "born or naturalized in the United States." Then the section forbids three kinds of state action: abridging the...