Supreme Court announced, for thenfirst time, that “Freedom of speech andnof the press … are among the fundamentalnpersonal rights and ‘liberties’nprotected by the due-process clause ofnthe Fourteenth Amendment” — andnyet, construing the right of free speechnnarrowly, it allowed the conviction tonstand. Twelve years later the Courtnreiterated the doctrine, declaring thatncertain “fundamental” rights, centralnto a regime of “ordered liberty,” werenprotected by the due-process clause,nbut in that particular case it held thatnimmunity to double jeopardy was notnamong those rights.nAradical enlargement of the doctrinenwas proposed in 1947, whennJustice Hugo Black claimed in a dissentingnopinion that the legislative history ofnthe Fourteenth Amendment provednthat its framers intended it to “incorporate”nthe Bill of Rights, which is to saynmake the first eight amendments applicablento the states as well as the federalngovernment. The claim was explicitlynrejected by the other justices and discreditednin studies by various constitutionalnscholars. But restraint, reason,nfederalism, and the very idea that legislativenintent means anything were soonnto breathe their last.nThough few people recognized it asnsuch at the time, their death knell wasnsounded in the five desegregation casesnknown collectively as Brown v. SchoolnrnMOVING?nLET US KNOW BEFORE YOU GO!nTo assure uninterrupted delivery ofnChronicles, please notify us in advance.nSend change of address onnthis form with the mailing label fromnyour latest issue of Chronicles to:nSubscription Department, Chronicles,nP.O. Box 800, Mount Morris, Illinoisn61054.nNamenAddress .nCitynState -^ip_n30/CHRONICLESnBoard. When the cases were first arguednbefore the Supreme Court inn1952, the justices were sorely divided.nChief Justice Fred Vinson, uncertainnin his own mind but leaning towardnupholding the “separate but equal”ndoctrine that had prevailed for nearlynsixty years, wanted to hear more fullynwhat the framers of the FourteenthnAmendment had intended, and soncounsel on both sides were ordered tondo the necessary research and re-arguenthe case a year later. That was embarrassingnto the NAACP’s case, for thenhistorical record clearly favored thencontinuation of segregation. Indeed, asnone member of the NAACP team (thenhistorian Alfred Kelly) admitted yearsnlater, the team found it expedient tonfalsify and misrepresent evidence innorder to present its case.nAs it happened, the historical recordndid not matter, for Vinson died (“annact of God,” Felix Frankfurter gleefullyndeclared), and he was replaced by EarlnWarren—who was interested neithernin law nor in history, only in results.nThus it was that the decision came tonbe based not on the record or thenlanguage of the amendment or uponnother relevant constitutional provisions,nbut (as Warren was candid tonadmit) upon the testimony of a socialnpsychologist that accorded with Warren’snpersonal convictions and ideas ofnsocial justice.nHaving thus crossed the Rubiconn— I use the metaphor deliberately,nfor that was the beginning of an age ofnjudicial Caesarism — the Court proceedednto render a succession of revolutionaryndecisions. Quite in additionnto moving from ruling that race mustnnot be used as a factor in assigningnchildren to schools to ruling in theneariy 1970’s that race must be thenprincipal factor, the Court began anprocess of “selective incorporation” ofnthe Bill of Rights to justify its decisionsnin regard to school prayer, criminalnrights, legislative reapporrionment,npornography, abortion, and a host ofnother subjects. Each of the decisionsneroded traditional communitarian values,nand each was rendered at thenexpense of the constituhonal authoritynof state and local governments to regulatentheir internal affairs.nThough the direction of its rulingsnwas consistent, however, the Courtnlacked a consistent rationale for what itnnnwas doing until 1970, and the rationalenit then advanced had an interestingnhistory of its own. When Brown v.nSchool Board was being adjudicated.nJustice Frankfurter had had his lawnclerk, Alexander Bickel, carefully studynthe history of the Fourteenth Amendment,nso that he would know independentlynof the arguments of counsel justnwhat the intent of the framers hadnbeen. Bickel did an exhaustive researchnjob and submitted a lengthy memorandum,nthe conclusion of which was thatnit was impossible to use the amendmentnto warrant desegregation. Afternthe Court had done so anyway, Bickelnpublished his memorandum, but withna curious speculative twist. He pointednout that a few of the Radicals in then1866 Congress had wanted enfranchisementnof blacks, integration, socialnequality, and various other things thatnwere politically unattainable. It mightnbe, Bickel surmised, that they helpednengineer the phraseology of thenamendment so as to make it “opennended,” thus facilitating a more enlightenedninterpretation in the future.nThere was no evidence to support thisnsurmise and a great deal of evidence tonthe contrary. Nevertheless, in 1970nJustice William Brennan worked thenidea into a decision. Justice Black,nseeing the possibilities that this doctrinenraised, declared that the openendedntheory made “the history of thenFourteenth Amendment . . . irrelevant.”nWhat it all comes down to is thatnthe Supreme Court could holdnin 1989, despite its putatively conservativenmajority, that when the FirstnAmendment says, “Congress shallnmake no law respecting an establishmentnof religion, or prohibiting the freenexercise thereof,” and the FourteenthnAmendment says that no state shalln”deprive any person of life, liberty, ornproperty without due process of law,”nthe plain import of those words is that itnis unconstitutional to open high-schoolnfootball games in Georgia with a prayer.nIt was probably the endorsement ofnthe open-ended theory that inspirednBerger — though already an eldernstatesman among constitutionalnscholars — to undertake the prodigiousnresearch that underlay Government bynJudiciary and many of the essays republishednin his Selected Writings onn