federalism describes when the 14th amendment is used to apply the bill of rights to state governments.
what term describes when the 14th amendment is used to apply the bill of rights to state governments?
federalism
berger also criticizes the argument made by alexander bickel, william van alstyne, and others that the 14th amendment's language was meant to be open-ended in order to give future generations a large amount of discretion in determining how to apply the 14th amendment's principles to their own times. berger argues that the "open-ended language" theory lacks any historical basis whatsoever and that, in any case, any intentions that existed but were not disclosed to the american people before they ratified a constitutional amendment certainly have no value and shouldn't be used as a basis for interpreting this amendment. in berger's view, the ideas of substantive due process as well as the incorporation of the bill of rights (against the states) are both contrary to the intent of the framers of the fourteenth amendment. in regards to incorporation of the bill of rights, berger argues that the views of john bingham and jacob howard in regards to this issue were unorthodox (bingham and howard both stated that the 14th amendment would apply the first eight amendments in the bill of rights against the states) and that most republicans in the 39th united states congress (which proposed and passed the 14th amendment) did not share bingham's and howard's views on this issue. as support for his position, berger points out that none of the republicans who spoke about the 14th amendment on the campaign trail leading up to the 1866 elections ever said or even suggested that the 14th amendment would apply any of the amendments in the bill of rights against the states and that court rulings shortly after the 14th amendment's ratification in 1868 continued to hold that the bill of rights was inapplicable against us states (as opposed to the us federal government--against which the bill of rights was always held to be applicable). finally, berger defends the holding in the notorious 1896 case "plessy v. ferguson" and argues that the reason that "plessy has become a symbol of evil[] ... is because we impose 'upon the past a creature of our own imagining' instead of looking to 'contemporaries of the events we are studying.'" berger argues that "plessy merely reiterated what an array of courts had been holding for fifty years"--starting with the 1849 massachusetts supreme court case "roberts v. city of boston" (which upheld the constitutionality of segregated schools in massachusetts).
government by judiciary
some constitutional originalists, notably raoul berger in his influential 1977 book "government by judiciary," make the case that "brown" cannot be defended by reference to the original understanding of the 14th amendment. they support this reading of the 14th amendment by noting that the civil rights act of 1875 did not ban segregated schools and that the same congress that passed the 14th amendment also voted to segregate schools in the district of columbia. other originalists, including michael w. mcconnell, a federal judge on the united states court of appeals for the tenth circuit, in his article "originalism and the desegregation decisions," argue that the radical reconstructionists who spearheaded the 14th amendment were in favor of desegregated southern schools. evidence supporting this interpretation of the 14th amendment has come from archived congressional records showing that proposals for federal legislation which would enforce school integration were debated in congress a few years following the amendment's ratification. in response to michael mcconnell's research, raoul berger argued that the congressmen and senators who were advocating in favor of school desegregation in the 1870s were trying to rewrite the 14th amendment (in order to make the 14th amendment fit their political agenda) and that the actual understanding of the 14th amendment from 1866 to 1868 (which is when the 14th amendment was actually passed and ratified) does, in fact, permit u.s. states to have segregated schools.
brown v. board of education