A Rare Scholar
November 7, 2000
my heart aches. I never met Raoul Berger, but I owe him more than I
can express. And I have just learned that he died in late September. He was
99 years old.
Berger was a liberal constitutional
scholar of rare integrity so much so that his fellow liberals
eventually denounced and ostracized him. He had the intellectual honesty
to recognize that my conclusions are not infrequently at war with
my predilections. And he never compromised his scholarly
conclusions to fit his political preferences. He deplored legally imposed
racial segregation, for example, but he nevertheless found the U.S.
Supreme Courts 1954 landmark decision in Brown v. Board
of Education to be without constitutional merit.
Liberals have no difficulty believing
that the U.S. Constitution protects Communists, criminals, and
pornographers the thought that we hate, as Oliver
Wendell Holmes put it. Why should they find it hard to understand that the
Constitution also protects state laws we hate?
Or does the Constitution mandate only
outcomes liberals prefer? To say so is wishful thinking, which Berger
refused to indulge. He respected the Constitution too much to pretend, as
most liberals do, that it was a living document whose
meanings could be manipulated for convenience. All law requires
scrupulous rigor of interpretation especially constitutional law.
Otherwise it isnt law, but whim.
Born in Russia to Jewish parents,
Berger was brought to this country as a small boy. He became a lawyer and
served in Franklin Roosevelts New Deal. Later in life he became an
academic and wound up at Harvard, publishing his first book at the age of
In 1972 his book Impeachment: The Constitutional
Problems happened to appear just as the Watergate scandals were
exploding, and liberals hailed Berger for providing a scholarly
underpinning for their efforts to nail Richard Nixon. By another
coincidence, his next book, Executive Privilege: A Constitutional
Myth, debunked the defense Nixon was trying to mount. Again
liberals welcomed Bergers trenchant legal analysis. Why not? It
served their purposes, though in both books he had merely been trying to
illuminate the truth for its own sake.
For two years Berger was celebrated
in the media. Intellectuals fawned on him. He was cited as a great
constitutional scholar. And so he was. And for a while his virtues were
rewarded with fame and acclaim.
But his next book, Government
by Judiciary: The Transformation of the Fourteenth Amendment,
shocked and outraged liberals. Berger showed that the Fourteenth
Amendment, adopted after the Civil War, simply couldnt mean what
the Supreme Court had tried to make it mean since World War II. He had
made hamburger of a liberal sacred cow.
Instead of showing that
Bergers scholarship was wrong, liberals simply cursed him for
turning back the clock and advocating the rule of the
dead hand of the past. In other words, he had violated
progressive standards, even if his scholarship was
Berger continued writing books
showing that liberal jurisprudence had falsified the Constitution. The text
and its history proved that the progressives were wrong,
the reactionaries right. The Tenth Amendment underlined
the basic principle of the Constitution: any power not delegated to the
federal government was denied to it. Berger further showed that
Congresss power to regulate commerce is far
narrower than the comprehensive power liberals would like it to be. And
he insisted that no court had the authority to change the meaning of the
fundamental law of the land.
Such unfashionable views were not
redeemed by their iron logic. Berger had offended the legal, intellectual,
and journalistic consensus in favor of activist (i.e., liberal)
jurisprudence. He was consigned to the Memory Hole.
But Berger never backed down. The
truth was the truth, no matter how unpalatable to him or anyone else. In
fact, he had his sharpest disagreements with the people whose political
views he shared, because he wouldnt trim his scholarship to suit a
party line. If he lost favor with intellectuals and the media, he was
willing to pay the price.
Raoul Berger not only had a rare mind:
he was a rare man. His work will endure because of its merit, but also
because of his courage. As the poet says: Theres a great
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