On September 23, we lost one of the great jurisprudential fighters for Truth, Justice, and the American Way. Berger, late Charles Warren Senior Fellow at Harvard University, former professor of law at the University of California’s Boalt Hall, one-time second concertmaster for the Cincinnati Symphony Orchestra, died at the age of 99. Berger’s career as a violinist preceded his life as a legal scholar, as did his days as a practicing lawyer and New Deal bureaucrat. While Raoul was a hero and a Dutch uncle to many of us judicial conservatives, he was a scourge to most of the legal academy. A lifetime Democrat whose hero was Thomas Jefferson, he claimed that he valued truth more than the results he desired, and he did more than any man to discredit the liberal activist jurisprudence of the Warren Court.
As a spate of obituaries noted, Berger was a darling of liberals when he provided, in his first two books, ammunition for the enemies of Richard Nixon. Through convincing research into materials from English and early American history, Berger showed that impeachable offenses did not have to be actual crimes but could include non-criminal abuse of the office. (A few of us would later cite him in hearings concerning President Clinton, a fact conveniently missed by the media in the encomiums to Berger.) Berger’s Executive Privilege also cast doubt on Nixon’s use of national security as a justification for not turning evidence over to Congress, and this book could also be used to expose President Clinton’s repeated production of new and absurd Presidential privileges, although the obituaries again failed to make this observation.
Press accounts of Berger’s life did observe, however, that following Richard Nixon’s forced removal from office, liberals distanced themselves from Berger as his further researches revealed a conspicuous lack of historical support for the theory the 14th Amendment “incorporated” the Bill of Rights. In Berger’s most important work, Government by Judiciary (1977), he explained that the 14th Amendment was not meant to alter fundamentally the distribution of power between state and federal governments; rather, it was simply designed to allow the newly freed slaves to enjoy the same rights to property ownership and the ability to make and enforce contracts that their white fellow citizens did. Berger rejected the theory, maintained by Hugo Black and others who believed, based on the thin evidence of statements by a couple of legislative sponsors of the 14th Amendment, that it was designed to “incorporate” the prohibitions of the Bill of Rights against the states. The incorporation theory, of course, served as the basis for the Warren Court (and the Berger Court and the Rehnquist Court) to expand the reach of the federal government and to circumscribe state and local governments in previously unimaginable ways.
Once Government by Judiciary was published, Berger became persona non grata in most of the legal academy. While he maintained his position as Charles Warren Fellow at Harvard for several years thereafter, he never really felt accepted by his Cambridge colleagues. If what Raoul had argued was true (and it most probably was), then the Warren Court’s decisions on desegregation, criminal law, and voting rights were all illegitimate. If Berger was right, then the ideology of activist jurisprudence, to which most of the faculty at Harvard and other Ivy League law schools subscribed, was built on something very close to fraud. For most of the last quarter of the 20th century, Berger was simply ignored by those practicing constitutional law in the academy, and his trail-blazing work was never cited by the United States Supreme Court, although several state Supreme Courts and a few lower federal courts did rely on his scholarship.
Perhaps it was the fact that Berger was not particularly well treated by the Ivy Leaguers that led Berger to endow a chair in his own name at Northwestern University School of Law, his alma mater, a chair which I now hold. For that reason, I don’t pretend to be objective where Berger is concerned, and as far as I know he was the only living legal historian ever to endow a chair in legal history in his own name. Modest he was not, nor was he shy or retiring. Anyone who wrote a law-review article or a book review critical of Berger’s views would discover, within a couple of months, that Berger had written a scathing response, and those who dared write a rebuttal to Berger’s reply soon found themselves confronted in print with a Berger rejoinder. The hundreds of Berger law-review articles often took the form of this nearly endless dialogue, and most of Berger’s assailants eventually succumbed, giving him the last word.
Berger’s work was not without some flaws: As a scholar, he was a great trial lawyer, and he occasionally used his evidence a bit too selectively for some tastes, or reached conclusions for which he had perhaps a bit less support than some scholars would have demanded. He was not above the occasional ad hominem attack, both on the framers of the 14th Amendment and on younger scholars who dared to question his assertions. Which is all to say that Berger was human, rather than divine. He was writing vigorously until almost the end, and it was still pretty damn good. Berger was one of the few writers who could successfully demand that student law-review editors refrain from changing any of his text, and you angered him at your peril. If there are law reviews published beyond the Pearly Gates, Justices Warren and Brennan will now be brought to task for eternity, but Raoul Berger will be missed here.
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