[1] Berger argues that the U.S. Supreme Court is not actually empowered to rewrite the U.S. Constitution – including under the guise of interpretation – and that thus the U.S. Supreme Court has consistently overstepped its designated authority when it used its powers of interpretation to de facto rewrite the U.S. Constitution in order to reshape it more to its own liking.

[1] 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.

[1] 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.

[1] Also, Berger argues that the U.S. Congress and not the courts were meant to have the exclusive authority to enforce the Fourteenth Amendment.

"[1] The scholars and law professors whom Berger responded to include (but are not limited to) John Hart Ely, Aviam Soifer, Louis Fisher, Michael Kent Curtis (author of Free Speech, "The People's Darling Privilege"), Paul Brest, Paul Dimond, Lawrence G. Sager, Mark Tushnet, Michael Perry, Gerald Lynch, Hugo Bedau, Robert Cottrol, Michael W. McConnell, H. Jefferson Powell, Jack Balkin, Leonard Levy, Stephen Presser, Michael Zuckert, Randy Barnett, Boris Bittker, Bruce Ackerman, Hans Baade, Akhil Amar, Jack Rakove, and Ronald Dworkin.