Fie on the 14th

Berger barks again

Four years ago, a retired lawyer named Raoul Berger was catapulted from obscurity to national prominence by providing an important part of the constitutional interpretations leading to Richard Nixon's downfall. His book Impeachment, begun in 1969 with only the problem of bad federal judges in mind, happened to roll off the presses during the Ervin committee hearings in 1973; it forcefully argued that proof of a criminal violation was not required to remove a federal official. A year later the Harvard-based Berger published Executive Privilege, which demolished the President's cited historical precedents for withholding evidence.

Berger is not, however, a liberal Ivy League don. In fact, he is a maverick outsider who emigrated from the Ukraine as a child and worked his way through school, a gadfly who enjoys riling the old-boy professors at Harvard. Berger's taste for legal jousting is all too plain in his latest book, Government by Judiciary (Harvard University Press; $15), an elaborate study of the 1866 drafting of the 14th Amendment to the Constitution and its subsequent application. Berger's conclusion: virtually every major judicial advance of the past quarter-century, from desegregation to reapportionment, was based on unconstitutional usurpation of power by the courts and their misuse of the vague due process and equal protection guarantees of the 14th Amendment.

In Berger's rigid interpretation, the post-Civil War Congress was dominated by "Negrophobia"; it was willing to extend to blacks rudimentary civil rights, such as equal punishment for crimes and the right to own property, but did not intend the 14th Amendment to grant them equal access to voting booths, schools, juries or jobs. Thus in Berger's accounting, when Congress enacted the provision including blacks as full citizens in apportioning House seats, it did not mean to compel the former Confederacy actually to give blacks the vote. Quite the opposite, he says: the provision meant to reduce Southern representation when the former slavocracy denied blacks the opportunity to vote, ensuring continued Re publican control of the Government.

Actually, a conservative Supreme Court soon seized upon the amendment to protect business interests, while down playing its racial objectives. State laws setting minimum wages and hours, for example, were initially declared violations of the due process "freedom of contract." More recently, the phrase "equal protection of the laws," long considered vague and toothless, has been dusted off to nullify a whole battery of practices not directly contemplated by the amendment's framers: malapportioned legislatures, residency requirements for voting and welfare, even some sex discrimination.

This is heresy to Berger. "I've been a lifelong liberal. But protection from dictatorship lies in laws, and laws should be interpreted in light of what the men who wrote them meant to signify," he says.

"The road to Weimar and Hitler is to start tampering with constitutional guarantees allegedly for benign purposes."

The weight of legal scholarship opposes that inflexible view. Harvard's Derrick A. Bell Jr. scoffs that Berger "is always very certain about matters that others have been in the dark on for years.

He doesn't have any more information than anybody else." Most scholars insist that the Constitution's strength lies in the "majestic generalities" that permit its adaptability to changing times. "In the context of 1868, the framers were reaching out very far to require equal treatment by states as to race," says Historian Harold Hyman of Rice University. "They left definitions vague, and that's good constitution drafting: leaving details to posterity." Adds Leonard Levy of Claremont Colleges: "We can't be governed by the dead hand of the past."

The criticism fails to shake Berger, now 76 and recently retired as a senior fellow in legal history at Harvard. "I've been accustomed to swimming upstream a good deal of my life," he says. Berger concedes it would be "utterly unrealistic" to expect the Supreme Court to reverse its host of 14th Amendment decisions. But tie wants the Justices to leave future cases involving busing, criminal law, obscenity, abortions, libel and voting rights to state courts and legislatures.

That is most unlikely. The national commitment to protecting all manner of minority rights through the 14th Amendment appears fixed. Says the Urban League's Vernon Jordan: "Black people )ase their hopes and aspirations on the 14th Amendment." But many Americans have become restive about the growing power of courts and lawyers, and the Burger Court has begun extricating the Federal judiciary from some emotion-reighted disputes. With adroit timing, Raoul Berger has once again stated, or overstated, a provocative point of view in matter of compelling concern.

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