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A Rare Scholar

November 7, 2000

Today 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 Court’s 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 isn’t 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 Roosevelt’s New Deal. Later in life he became an academic and wound up at Harvard, publishing his first book at the age of 68.

[Breaker quote: Raoul 
Berger, champion of the Constitution]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 Berger’s 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 couldn’t 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 Berger’s 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 irrefutable.

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 Congress’s 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 wouldn’t 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: “There’s a great spirit gone.”

Joseph Sobran

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