had forced the delay in the Russian-rnMoldovan talks because of concerns overrna plan (advanced by former RussianrnPrime Minister Yevgeni Primakov) torntransform Moldova into a confederahon,rnleaving the Moldovan state intact whilerngranting the Dniester region autonomy.rnUnder the American initiative, however,rnRussia would carry out a phased withdrawalrnof the 14th Army, financed by thernOSCE.rnThe Primakov plan, which appears tornbe supported by both the Moldovans andrnthe Russians (at least for now), is stronglyrnopposed by NATO: Russia would stillrnmaintain ties with an autonomous DniesterrnRepublic, ties that would likely includerna guarantee of Dniester self-determinationrnshould Moldova decide tornrejoin Rumania. Moreover, the regionrnwould probably seek admittance to thernRussian-Belarussian union under suchrncircumstances, thus maintaining Russianrninfluence in the region—which U.S. foreignrnpolicymakers do not want.rnAnother Russian newspaper, Kommersant,rnpointed out that the U.S. Congressrnhad recently allocated $45 million inrn”military assistance” to the former Sovietrnrepublics of Georgia, Ukraine, Uzbekistan,rnAzerbaijan, and Moldova. The apparentrnpurpose of this aid is to weakenrnRussian influence in those states and tornstrengthen a Western-oriented regionalrnbloc.rnThe net effect of the NATO/OSCE/rnE.U. machinations would be to isolaternRussia by creating, on the periphery ofrnthe former Soviet empire, a NATO-dominatedrnbuffer zone that just so happens torninclude a number of states acting as gasrnand oil transit lines. The importance ofrnthese states will only increase as depositsrnof oil in the Caspian Sea are developed.rnSmall wonder, then, that an increasingrnnumber of Russians view the West withrnsuspicion and hostility, NATO’s ultimaternobjective is to weaken, if not dismember,rnRussia.rn— Denis PetrovrnR A O U L B E R G E R , R.I.P. On Septemberrn23, we lost one of the great jurisprudentialrnfighters for Truth, Justice,rnand the American Way. Berger, laternCharles Warren Senior Fellow at HarvardrnUniversity, former professor of law atrnthe University of California’s Boalt Hall,rnone-time second concertmaster for thernCincinnati Symphony Orchestra, died atrnthe age of 99. Berger’s career as a violinistrnpreceded his life as a legal scholar, asrndid his days as a practicing lawyer andrnNew Deal bureaucrat. While Raoul wasrna hero and a Dutch uncle to many of usrnjudicial conservatives, he was a scourgernto most of the legal academy. A lifefimernDemocrat whose hero was Thomas Jefferson,rnhe claimed that he valued truthrnmore than the results he desired, and herndid more than any man to discredit thernliberal activist jurisprudence of the WarrenrnCourt.rnAs a spate of obituaries noted, Bergerrnwas a darling of liberals when he provided,rnin his first two books, ammunition forrnthe enemies of Richard Nixon. Throughrnconvincing research into materials fromrnEnglish and early American history,rnBerger showed that impeachable offensesrndid not have to be actual crimes butrncould include non-criminal abuse of thernofiTice. (A few of us would later cite himrnin hearings concerning President Clinton,rna fact conveniently missed by thernmedia in the encomiums to Berger.)rnBerger’s Executive Privilege also castrndoubt on Nixon’s use of national securityrnas a justification for not turning evidencernover to Congress, and this book could alsornbe used to expose President Clinton’srnrepeated production of new and absurdrnPresidential privileges, although the obituariesrnagain failed to make this observation.rnPress accounts of Berger’s life did observe,rnhowever, that following RichardrnNixon’s forced removal from office, liberalsrndistanced themselves from Berger asrnhis further researches revealed a conspicuousrnlack of historical support for the theoryrnthe 14th Amendment “incorporated”rnthe Bill of Rights. In Berger’s most importantrnwork. Government by judiciaryrn(1977), he explained that the 14thrnAmendment was not meant to alter fundamentallyrnthe distribution of power betweenrnstate and federal governments;rnrather, it was simply designed to allow thernnewly freed slaves to enjoy the samernrights to property ownership and the abilityrnto make and enforce contracts thatrntheir white fellow citizens did. Berger rejectedrnthe theory, maintained by HugornBlack and others who believed, based onrnthe thin evidence of statements by a couplernof legislative sponsors of the 14thrnAmendment, that it was designed to “incorporate”rnthe prohibitions of the Bill ofrnRights against the states. The incorporationrntheory, of course, served as the basisrnfor the Warren Court (and the BergerrnCourt and the Rehnquist Court) to expandrnthe reach of the federal governmentrnand to circumscribe state and local governmentsrnin previously unimaginablernways.rnOnce Government by Judiciary wasrnpublished, Berger became persona nonrngrata in most of the legal academy.rnWhile he maintained his position asrnCharles Warren Fellow at Harvard forrnseveral years thereafter, he never reallyrnfelt accepted by his Cambridge colleagues.rnIf what Raoul had argued wasrntrue (and it most probably was), then thernWarren Court’s decisions on desegregation,rncriminal law, and voting rights werernall illegitimate. If Berger was right, thenrnthe ideology of activist jurisprudence, tornwhich most of the faculty at Harvard andrnother Ivy League law schools subscribed,rnwas built on something very close tornfraud. For most of the last quarter of thern20th century, Berger was simply ignoredrnby those practicing constitutional law inrnthe academy, and his trail-blazing workrnwas never cited by the United StatesrnSupreme Court, although several staternSupreme Courts and a few lower federalrncourts did rely on his scholarship.rnPerhaps it was the fact that Berger wasrnnot particularly well treated by the IvyrnLeaguers that led Berger to endow a chairrnin his own name at Northwestern UniversityrnSchool of Law, his alma mater, arnchair which I now hold. For that reason,rnI don’t pretend to be objective wherernBerger is concerned, and as far as I knowrnhe was the only living legal historian everrnto endow a chair in legal history in hisrnown name. Modest he was not, nor wasrnhe shy or retiring. Anyone who wrote arnlaw-review article or a book review criticalrnof Berger’s views would discover,rnwithin a couple of months, that Bergerrnhad written a scathing response, andrnthose who dared write a rebuttal to Berger’srnreply soon found themselves confrontedrnin print with a Berger rejoinder.rnThe hundreds of Berger law-review articlesrnoften took the form of this nearlyrnendless dialogue, and most of Berger’s assailantsrneventually succumbed, givingrnhim the last word.rnBerger’s work was not without somernflaws: As a scholar, he was a great trialrnlawyer, and he occasionally used his evidencerna bit too selectively for some tastes,rnor reached conclusions for which he hadrnperhaps a bit less support than somernscholars would have demanded. He wasrnnot above the occasional ad hominem attack,rnboth on the framers of the 14thrnAmendment and on younger scholarsrn8/CHRONlCLESrnrnrn