It is perhaps unfair to say that Berger "swallowed it whole." It's true he did not seem greatly enlightened or informed by the insights of the post-Dunning revisionists, and I think his views on incorporation and the meaning of the 14th amendment were often doggedly obtuse. But despite occasional unfortunate references (like calling Sen. Jacob Howard a "Negrophile") I don't think he endorsed most of the Dunning school views in their rawest form.
Charles Fairman, the other great anti-incorporationist scholar of the late 20th century, has also been criticized for being under sway of the Dunning School. My reading is that he showed growth, however. His early writings (1939 bio of Justice Miller and the famous 1949 Stanford Law Review article) seem antiquated and Dunning-influenced in their historical understanding. But by the time of his massive 1971 and 1987 studies of the Chase/Waite Court (despite their various limitations), he seemed to have developed a more nuanced post-Dunning view, and was appropriately critical of Reconstruction-era Democrats and praising Republican thought and leadership. He still did not adequately cite or engage the modern historiography. He was always a great admirer of Republican Justices Miller and Bradley, however, even in his earlier writings. Despite my strong disagreement with Fairman's anti-incorporationist views, my respect for him has grown as I have studied his various writings, something I cannot say for Berger. I think Curtis, Aynes, Amar, and others have effectively critiqued (indeed, dismantled) his anti-incorporationist views. Bryan Wildenthal Thomas Jefferson School of Law -----Original Message----- From: Judith Baer [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 2:29 PM To: [EMAIL PROTECTED] Subject: Re: John Bingham & the Story of American Liberty It has long been common knowledge among modern U.S. historians that the American memory and understanding of the Civil War and Reconstruction was basically taken over and distorted for many years by Southern and white-supremacist sympathizers. As late as 1977, Raoul Berger (GOVERNMENT BY JUDICIARY) swallowed it whole. I wrote EQUALITY UNDER THE CONSTITUTION (1983) largely in response to him. Bryan, welcome to the select group of Fourteenth Amendment history mavens--Mike, Earl, me, Bill Nelson, anyone else? Judy Baer
