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RAOUL BERGER ON PUBLIC LAW

Congress v. The Supreme Court (Harvard University Press, 1969).Impeachment: The Constitutional Problems (Harvard University

Press, 1973).Executive Privilege: A Constitutional Myth (Harvard University

Press, 1974).Government by Judiciary: The Transformation of the Fourteenth

Amendment (Harvard University Press, 1977).

P olitical scientists, in recent decades, have conducted a generalretreat from constitutional and legal questions. At first it was

fashionable for them to dwell on political behavior, personality, andcase studies, while making light of the "formal" powers and struc-tures of government. Lately, I think, the volume of federal litigationhas reduced the decision to more practical proportions: too muchhappens in the courts to keep up with. So we delegate the responsi-bility for understanding (and shaping) public law to attorneys,legislators, and judges.

Still, political scientists have to write textbooks, prepare articles,deliver convention papers, and expound to students on fast-breakingissues of executive privilege, the war power, impoundment, execu-tive agreements, and other topics that wind their way through thecourts. The temptation is strong to take at second-hand what theyare unprepared and unwilling to study directly. Political scientistsbecome mere transmission belts for the findings of others.

Current writings by political scientists depend heavily on Pro-fessor Raoul Berger, who has written extensively on judicial review,impeachment, executive privilege, the war power, congressional in-vestigations, and other legal issues of contemporary interest. In thisreview I examine his four books (as well as articles in which hedefends the books) to see how well they measure up in terms ofconsistency, theory, and methodology.

A reviewer of Raoul Berger should be aware of the warning hedelivered to one critic: "Winston Churchill reportedly said to onewho pointed to something wrong in one of his paintings: 'Any foolcan see what is wrong; can you see what is right?' Minimally, whatis right in my Executive Privilege is that I sought to arouse scholarsto the existence of a great constitutional issue, that I assaulted theexecutive citadel, Rogers"precedents,' and above all, that by collect-

174 THE POLITICAL SCIENCE REVIEWER

ing and posing my interpretation of the facts I opened the way to acontinuing dialogue." 1

On all those points Berger deserves credit: he draws attention tosubjects of great moment, he challenges prevailing authorities, andhe sparks a livelier debate than would exist without his prodding.To stimulate interest, however, is not the same as solid scholarship,and I urge political scientists to proceed with caution before adopt-ing Berger as an authoritative and reliable source.

At the outset, it would be well to summarize the main findings ofhis four books. Congress v. The Supreme Court studies the debatesat the Philadelphia Convention, the remarks of the delegates outsidethe Convention (not too far removed in time), the debates in theState ratification conventions, and the debates in the First Congress-all for the purpose of determining the legitimacy of judicial re-view. Berger holds that the framers did intend for the SupremeCourt to have the power to set aside legislative acts. Consistent withhis view of limited government, he maintains that the power ofCongress to define the appellate jurisdiction of the Supreme Courtcould not be used in wholesale fashion to undermine judicial review,especially in matters of liberty and property under the due processand just compensation clauses.

Impeachment concludes that "high crimes and misdemeanors,"as derived from English history, were political crimes against theState. Berger argues convincingly that impeachment was not limitedto indictable crimes. He further argues that the framers did not in-tend to confer upon Congress an unrestricted power of impeach-ment. To police the boundaries of that power he would allow thecourts to exercise judicial review over impeachment. Berger believesthat impeachment was meant to be used mainly against the Presi-dent and his chief assistants, not judges.

Executive Privilege is another study in legal history. Basically thetext puts the power of Congress to investigate against the power ofthe President to withhold information, either through his "executivepower" under Article II, Commander-in-Chief powers, generalpowers of foreign relations (negotiation of treaties and executiveagreements), or precedents established from one Administration toanother. Berger maintains that the case for executive privilege is aweak one, and urges Congress to exercise vigorously its investigative

1 Raoul Berger, "Executive Privilege: A Reply to Professor Sofaer," 75 Colurn.L. Rev. 603, 621 (1975).

RAOUL BERGER ON PUBLIC LAW 175

power in order to preserve democratic values and accountability tothe people.

Government by Judiciary claims that the Fourteenth Amend-ment has been misused by the Supreme Court to reach into areasthat the framers of the Amendment never intended: suffrage andsegregation. Because of such decisions as Brown v. Board of Educa-tion and Reynolds v. Sims, Berger denounces the Warren Court forengaging in judicial policymaking.

Rather than evaluate these works one at a time, I prefer to lookfor general themes and principles that cut across the books: ques-tions of constitutional theory, English history, judicial review, andexecutive-legislative relationships. Berger does not construct a gen-eral constitutional framework, but by devising broad contexts of myown I am able to probe many of the interpretations he advances.

I. BERGER'S VIEW OF CONSTITUTIONALISM

As a general principle, Berger believes that an act of the FederalGovernment is illegal unless based upon a power enumerated in theConstitution. He takes comfort in the statement of H. Lee at theVirginia ratification convention: "When a question arises with re-spect to the legality of any power, exercised or assumed," the ques-tion will be "Is it enumerated in the Constitution? . . . It is other-wise arbitrary and unconstitutional" (G 117, 407). 2 From that sameconvention he relies on Governor Randolph's position that the pow-ers of government "are enumerated. Is it not, then, fairly deducible,that it has no power but what is expressly given it?-for if its powerswere to be general, an enumeration would be needless" (E 57).

According to Berger, executive powers were "painstakingly enu -

merated and cautiously expanded." The words "executive power" inArticle II were used to describe "the powers thereafter conferred andenumerated" (E 55). The Philadelphia Convention moved to astrong executive, "but to one of enumerated functions . lackingan 'enumerated' power, action is illegal" (E 57-58).

For Berger, then, either a power is explicitly stated in the Consti-tution or it does not exist. Rejected is the notion of implied powers,inherent powers, powers derived from custom, or any other extra-

2 For page references I use the following code: Congress v. The SupremeCourt (C), Impeachment (I), Executive Privilege (E), and Government by Judi-ciary (G). When quoting from Berger's works I omit footnotes. If italics appearthe emphasis is always in the original.


constitutional power that is not expressly vested in one of thebranches. Not only is this doctrine impractical and unrealistic,Berger himself cannot adhere consistently to it. He must make roomfor the power of Congress to investigate, the President's power toremove executive officials, and the power of the Supreme Court toreview legislative actions.

A. Implied Powers

Berger appears to believe that repetition of the phrase "limitedgovernment" is useful in defining the scope of official action. FromChief Justice Marshall he takes the statement: "We admit, as allmust admit, that the powers of the government are limited, and thatits limits are not to be transcended." From Justice Samuel Miller heoffers this observation: "The theory of our governments is opposedto the deposit of unlimited power anywhere. The executive, thelegislative, and the judicial branches of these governments are all oflimited and defined powers" (G 2). But a thousand such exhortationsdo not advance us a single step in understanding where limits are tobe drawn or precisely how powers are defined. Nor do they explainwhy scholars and public officials have fought for two centuries, andfight still today, about actions that are within the bounds of theConstitution.

The methods used by Berger to support the idea of enumeratedpowers are poorly grounded. He holds that the Founders' "jealousattachment to State sovereignty" was "made explicit by the TenthAmendment" (G 284), but the legislative history of that amendmentoperates against him. Some members of the First Congress proposedthat the Tenth Amendment be so worded that all powers not "ex-pressly delegated" to the Federal Government would be reserved tothe States. Madison objected to this language because "it was impos-sible to confine a Government to the exercise of express powers;there must necessarily be admitted powers by implication, unless theConstitution descended to recount every minutiae." 3 After eliminat-ing "expressly," the Tenth Amendment came to read: "The powersnot delegated to the United States by the Constitution, nor pro-hibited by it to the States, are reserved to the States respectively, orto the people."

This is basic history but I find no mention of it anywhere in

8 Annals of Congress, I, 761 (Aug. 18, 1789).


Berger's four books, even though Madison's objection is included inMcCulloch v. Maryland, a decision that receives close scrutiny fromBerger. How are such elementary points overlooked? Do we ignoreinformation that becomes inconvenient and upsetting to tidyaccounts?

For the scope of executive power, Berger claims that "we mustfirst look to the provisions of the several state constitutions" (E 51).The content of state constitutions is not without interest. We maylook to the New York Constitution and elsewhere for the source ofsome constitutional language, but the original state charters tell usvery little about the anticipated breadth of executive power at thenational level.

Berger gives short shrift to the emerging executives of the 1774-

1787 period. He offers this picture:

When the revolting colonies assembled in the Continental Con-gress and dispensed with an executive, they carried the movementfor parliamentary supremacy to its logical conclusion. Experienceled them to make an exception for a Secretary of Foreign Affairs[in 1781], and John Jay was appointed to the post: But he waskept under a tight rein, as the Journals of the Congress disclose.(E 126)

The Continental Congress did more than make an exception fora Secretary of Foreign Affairs. It also created a Secretary of War, aSuperintendent , of Finance, a Secretary of Marine, and the office ofAttorney General. 4 Robert Livingston was actually the first Secre-tary of Foreign Affairs, and when Jay succeeded him, the powers ofthat office were considerably strengthened. A resolution adopted in1785 directed that all communications relating to foreign affairs bechanneled through the Secretary rather than to the competing com-mittees. Another legislative act in 1785 gave Jay full power to nego-tiate a treaty with Spain. In the words of a French minister, the"political importance of Mr. Jay increases daily. Congress seems tome to be guided only by his directions." 6 These experiences illumi-nate for us far more than the state constitutions the kind of execu-tive power intended by the Framers.

From pre-1787 developments Berger finds evidence that thecommander-in-chief clause should be construed narrowly. As he

4 See Louis Fisher, President and Congress 11-14 (1972).5 New powers to Jay: Journals of the Continental Congress, XXVIII, 56, and

XXIX, 562. French minister's report: George Bancroft, History of the Formationof the Constitution of the United States of America, I, 479.


writes: "How narrowly the function was conceived may be gatheredfrom the fact that in appointing George Washington Commander-in-Chief, the Continental Congress made sure . . . that he was tobe ìts creature . . . in every respect.' " Instructions drafted by JohnAdams, R. H. Lee, and Edward Rutledge told Washington that hewas "punctually to observe and follow such orders and directions. .. as you shall receive from this or a future Congress" (E 62). Thisfits in nicely with Berger's theory of enumerated powers, but only byusing selective vision. He totally ignores the extensive delegationsthat the Continental Congress soon made to General Washington.

For example, an order to General Washington in 1775 stated that"whereas all particulars cannot be foreseen, nor positive instructionsfor such emergencies so before hand given but that many thingsmust be left to your prudent and discreet management, as occur-rences may arise upon the place, or from time to time may fall out,you are therefore upon all such accidents or any occasions that mayhappen, to use your best circumspection . "e This kind of infor-mation (overlooked by Berger) does not help build the model of"narrow functions" and detailed instructions. Furthermore, it doesnot make much sense to talk about an isolated event during theContinental Congress, when a separate executive did not exist, andrelate it to the separate and independent office created in 1787.

The Helvidius-Pacificus exchange gives Berger an opportunityto analyze the issue of implied powers, and yet his treatment is one-sided and idiosyncratic. He relies on Madison's writings as "Hel-vidius," which conform to Berger's scenario, while discountingHamilton's essays as "Pacificus," which do not (E 64-69). He tries todiscredit the Pacificus essays by quoting John Quincy Adams' re-mark in 1836 that Madison "scrutinized the doctrines of Pacificuswith an acuteness of intellect never perhaps surpassed" (E 135). Aconvenient quote, no doubt, but it is thin analysis to dismissHamilton by quoting from someone else.

Berger's handling of Hamilton is opportunistic. At one point hestates: "Hamilton, who has been said to reflect the consensus of theFramers . . ." (E 146). Clearly Hamilton is going to be of use toBerger; hence the flattery. The footnote cross-references to Corwin'scharacterization of Federalist 78 as the "matured conclusions of the

6 Journals of the Continental Congress, II, 101 (1905). See W. Taylor Reveley,III, "Constitutional Allocation of the War Powers Between the President andCongress: 1787-1788," 15 Va. J. Int'l L. 73, 91-93 (1974).


Convention itself." This citation is most peculiar. Federalist 78 islimited to judicial review (an issue on which Corwin vacillated), andno one, not even the most ardent admirer of Hamilton, could everseriously present him as the archetype of the Framers. When pushedby one critic on the Helvidius-Pacificus issue, Berger flips to anotherposition (quoting again from someone): "as Professor Henry SteeleCommager put it, 'it is Madison, not Hamilton, who has a just claimto be considered not only the Father of the Constitution but its mostauthoritative interpreter.' " 7 In these quotations from Adams, Cor-win, and Commager, we look in vain for a reasoned position onimplied powers.

B. Separation of Powers

Berger takes strong exception to Chief Justice Warren's reliance,in Reynolds v. Sims, on such extraconstitutional sources as the Dec-laration of Independence and the Gettysburg Address (G 85, 348).Yet on several occasions he harks back to the Massachusetts Constitu-tion of 1780 (G 168-169, 250, 287, 290, 352). In so doing, he chargesthat the Supreme Court has violated the injunction of the separationof powers "made explicit in the 1780 Massachusetts Constitution,that 'the judiciary shall never exercise the legislative power' "(G 250). Since when is the Supreme Court bound by the Massachu-setts Constitution of 1780?

The 1780 charter is linked by Berger to the First Congressthrough this line of reasoning: "Article XXX [of the MassachusettsConstitution] provided that 'the legislative departments shall neverexercise the executive and judicial powers . . the executive shallnever exercise the legislative and judicial powers . . . the judicialshall never exercise the legislative and executive powers.' For thesame utterance by Madison, see 1 Annals of Congress 435-436"(G 250). Anyone familiar with the adoption of the Bill of Rightsunderstands that the kind of language found in Article XXX wasrejected by the First Congress. The "utterance by Madison" waslanguage proposed as a constitutional amendment but struck fromthe list of amendments submitted to the States for ratification. 8

In summarizing the "historical proof" for the conclusion thatexecutive privilege has no constitutional warrant, Berger turns toMontesquieu ("the Founders' oracle on the separation of powers")

7 Supra note 1, at 617.8 Supra note 4, at 24-26.


for the statement that the legislature "has a right, and ought to havethe means of examining in what manner its laws have been exe-cuted," in which the British, said Montesquieu, enjoyed an advan-tage over some governments where public officers "gave no accountof their administration." 9 Notwithstanding the praise bestowedupon Montesquieu in the Federalist Papers and at the PhiladelphiaConvention, the connection between his writings and the AmericanConstitution is quite tenuous. Clearly, the Framers departed fromhis model in fundamental ways. 1 ° A statement from Montesquieudoes not constitute, for me, "historical proof."

To build support for his view of executive privilege, Berger as -

serts that the Treasury Act of 1789, which placed upon the Secretaryof the Treasury the duty of furnishing information to Congressrespecting "all" matters referred to him by the Senate or House ofRepresentatives (1 Stat. 66), "must be deemed an authoritative con-struction that the separation of powers has no application to con-gressional inquiry" (E 46). Berger ignores the basic difference in thestatute creating the Treasury Department (located somewhere be-tween Congress and the President, in terms of supervision) and thestatutes creating the Foreign Affairs and War Departments (recog-nized by law as executive departments under the direction of thePresident). The latter two statutes did not specifically require theSecretaries of those departments to furnish information to Congress.Are those statutes, following Berger's logic, to be deemed an "au-thoritative construction" that the Foreign Affairs and War Depart-ments were immune from congressional investigation? Of course not.It is idle to pretend that the separation of powers doctrine has noapplication to congressional inquiry. ll

Berger does what he can to eliminate implied powers for theExecutive. With regard to the conflict between Congress and Presi-dent Washington, after the House had asked for papers bearing onthe St. Clair disaster, Berger states that Washington's cabinet agreedthat the "house was an inquest, 8c therefore might institute in-quiries," but concluded that the President had discretion to refusepapers "the disclosure of which would injure the public." From thisepisode Berger reaches the following judgment: "This discussion

9 Raoul Berger, "Executive Privilege, Professor Rosenblum, and the HigherCriticism," 1975 Duke L. J. 921, 924 (1975).

19 Supra note 4, at 3-5, 248-251.11 Louis Fisher, The Constitution Between Friends 139-165 (1978).


was rendered academic by the turnover of all the details of the dis-astrous expedition" (E 168-169). It was definitely not academic if thecabinet reached agreement on the principle that information couldbe withheld from Congress to protect the public. The principle ofexecutive privilege, even if not invoked, had been established.

Berger finds it significant that the term "executive privilege" is ofrecent vintage: "The very words 'executive privilege' were conjoinedonly yesterday, in 1958" (E 1). A footnote explores the developmentof this term. It does not seem to me significant to discover preciselywhen a term appears. What counts is the executive practice of with-holding information from Congress, and it is too obvious to meritextended discussion that the practice long predates 1958.1 2 Onecould play similar word games with "impoundment," also of recentvintage, but only by ignoring the fact that, under different names,Presidents have from an early date declined to spend funds appro-priated by Congress. 13

C. Constitutional Change

Berger is offended by the doctrine "adaptation by usage," bywhich he means "a label designed to render palatable successiveusurpations whereby the President has taken over treaty functionsconfided to Senate and President jointly, and war functions exclu-sively granted to Congress and withheld from him, and thus dis-rupted the constitutional distribution of powers considered invio-lable under the separation of powers" (E 89). He takes strongexception to the notion of a "living constitution," for the "sole andexclusive vehicle of change the Framers provided was the amend-ment process; judicial discretion and policymaking were in high dis-favor; all 'agents and servants of the people' were to be 'bound bythe chains' of a 'fixed Constitution' " (G 363-364).

Yet Berger wavers on the question of whether practice can bendand reshape the Constitution. Of executive privilege he says: "Notlogic but history is the test of executive power to withhold informa-tion, and history speaks plainly against it" (E 41). That is a danger-

12 For a precedent in 1794, in which Washington withheld . from the Senatecertain parts of correspondence between France and the United States, seeAbraham D. Sofaer, "Executive Privilege: An Historical Note," 75 Colum. L.Rev. 1318 (1975). Also, consider President Cleveland's fight with the Senateover access to documents: Grover Cleveland, The Independence of the Executive48-82 (1913).

13 Louis Fisher, Presidential Spending Power 147-171 (1975).


ous admission from Berger. If the Constitution depends on "his-tory," how can he at the same time counsel so strongly against"adaptation by usage"? Berger relies on custom in advocating trialby twelve jurors: "Adherence to a practice for 600 years renders itsàccidental' origin irrelevant, for as Coke stated, ùsage and ancientcourse makest law'-all the more when that usage is embodied withfull awareness in a written Constitution" (G 398). If we are to abideAmerican practice to alter our Constitution, especially when thepractice has been accepted by the people and the politicalinstitutions? '

Berger's strict view would, require hundreds of amendments tothe Constitution. The President is expressly empowered to grantreprieves and pardons. Does that mean full pardons only or may thePresident grant a conditional pardon? That question reached theSupreme Court in 1855. Petitioner argued that the President, bygranting a conditional pardon, assumed a power not conferred bythe Constitution and, in effect, legislated a new punishment. TheCourt held that granting pardons upon condition was simply anincident of the power to grant pardons. 14

Similar ambiguities have been handled by the Court with respectto the veto power. Does the Constitution require two-thirds of thetotal membership of each House of Congress for an override, ormerely two-thirds of a quorum (i.e., a majority of its members)? TheSupreme Court announced in 1919 that two-thirds of a quorumwould suffice. Y6 Can a President sign a bill after Congress recesses?Yes, according to a decision in 1899. 1 6 Can a President sign a billafter a final adjournment of Congress? Yes, as decided in 1932. 17

I do not see that we are any worse, constitutionally, because ofthese adjustments and refinements. Berger worries excessively aboutan uncontrolled judiciary: "If the Court may substitute its ownmeaning for that of the Framers it may, as Story cautioned, rewritethe Constitution without limit" (G 370). This sentence is stacked inBerger's favor: it begins with an "if," adds a few "mays," and endswith a hair-raising prospect. As another illustration: "A 'fundamen-tal law' that can be made to mean anything the Justices choose tomake it, even in direct contradiction of the plain intention of its

14 Ex parte William Wells, 59 U.S. (18 How.) 307, 310 (1855).15 Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 277 (1919).16 La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899).1

7 Edwards v. United States, 286 U.S. 482 (1932).


Framers, is no 'law' at all. "1S Another straw man. The extremepremises (made to mean anything even in direct contradiction of theplain intention) rob the sentence of value.

II. OVERRELIANCE ON ENGLISH PRECEDENTS

Berger depends heavily upon British constitutional history. InCongress v. The Supreme Court he turns partly to Coke to supportthe concept of judicial review (C 23-28). Impeachment relies exten-sively on precedents established by the British Parliament. He looksto English antecedents in matters of foreign relations, war, and trea-ties: "It needs constantly to be borne in mind that the Founderswere more influenced by the struggle of the Commons in the revolu-tionary seventeenth century than by subsequent eighteenth centurydevelopments" (E 124-125). Yet with the exception of a petition toJames I in 1621, every example that Berger offers-to illustrateparliamentary control over treaties and foreign policy-is takenfrom the eighteenth century (E 124-126).

In Executive Privilege he claims that "History must be our guideas to the scope of both the 'legislative' and 'executive' powers, notmerely because the Supreme Court turned to parliamentary historyin McGrain v. Daugherty for existence of the investigatory attributeof the `legislative power,' but because here as elsewhere the Framersthought in terms of English institutions and employed common lawterms" (E 42). I believe that Berger, in a very fundamental sense,misconstrues the significance of this heritage.

A. Uniqueness of American System

The Framers did think in common law terms, but for institutionsand individual liberties they adopted structures and values sounique that it is misleading to place such heavy stress on Britishhistory. Madison warned his colleagues, in the First Congress, thatthey could not look to British precedents for guidance:

In the declaration of rights which that country [Great Britain] hasestablished, the truth is, they have gone no farther than to raisea barrier against the power of the Crown; the power of the Legis-lature is left altogether indefinite. The freedom of the press

18 Raoul Berger, "Academe vs. the Founding Fathers," National Review,April 14, 1978, at 468.


and rights of conscience, those choicest privileges of the people,are unguarded in the British Constitution. 18

Other Members of the First Congress were also reluctant to apeBritish practice. Senator William Maclay recorded in his diary forJanuary 27, 1790:

Hawkins, the new member from North Carolina, rose and objectedto the clause respecting the benefit of clergy. He was not veryclear. I, however, rose-really from motives of friendship. I willnot say compassion, for a stranger. I stated that, as far as I couldcollect the sentiments of the honorable gentleman, he was opposedto our copying the law language of Great Britain; that, for mypart, I wished to see a tone of originality running through thewhole of it. I was tired of the servility of imitating English forms. 20

The Framers did not follow English precedents for the appoint-ment power. The British king, who appointed officers, created theoffices as well. The American Constitution gave Congress the powerto create offices and then joined the Senate with the Executive in themaking of appointments. In Federalist 48, Madison issues a warningagainst republics based on an "overgrown and all-grasping pre-rogative of an hereditary magistrate, supported and fortified by anhereditary branch of the legislative authority." Hamilton, of course,goes to great lengths in Federalist 69 to demonstrate how the Ameri-can President differs from the king of Great Britain. British history,while of some value in the study of private rights and proceduralsafeguards, is a poor guide to understanding executive-legislativerelationships in America. Questions of executive privilege, im-poundment, congressional investigation, and the war power cannotbe resolved by recounting British practices. As the Supreme Courtobserved in 1850:

. in the distribution of political power between the great de-partments of government, there is such a wide difference betweenthe power conferred on the President of the United States, andthe authority and sovereignty which belongs to the English crown,that it would be altogether unsafe to reason from any supposedresemblance between them, either as regards conquests in war, orany other subject where the rights and powers of the executivearm of the government are brought into question. 21

19 Annals of Congress, I, 436 (June 8, 1789).20 The Journal of William Maclay (Frederick Ungar Publishing Co., 1965),

at 182-183.21 Fleming v. Page, 50 U.S. (9 How.) 602, 618 (1850).


The British model is often put forward by reformers as the idealto which America should conform. Just as frequently the model isdecisively beaten back. Advocates of a national budget wanted Con-gress limited to the totals in the President's budget; legislators couldcut estimates but not add to them. Congress refused to have its free-dom of action so shackled. The Budget and Accounting Act of 1921rejected the effort to imitate British practices. The President sub-mits the budget as a document for which he is responsible. Membersof Congress may alter those estimates in any manner they see fit.

22

The idea of an American "question period"-allowing cabinet mem-bers to take the floor of Congress in the British manner to speak(but not vote)-has never gotten off the ground either.

23

Berger with greater reason consults British history for an under-standing of the impeachment power, but even here the precedentshave limited reach. "To understand what the Framers had in mindwe must begin with English law," writes Berger, "for nowhere didthey more evidently take off from that law than in drafting the im-peachment provisions" (I 54). Still, English law used the word "trea-son" loosely, applying it to offenses far removed from the tight defi-nition that appears in our Constitution (levying war against theUnited States and giving aid and comfort to enemies). The Framersexplicitly repudiated the value and roving applications of this poweras used in England.

24The differences between the British and

American forms of government are crucial: the English Parliamenthad far greater power to punish than the American Congress; theAmerican President has far more independence and autonomy thanthe British prime minister; the American system of separatedbranches bears little resemblance to the close executive-legislativelinkage that exists in England. Whatever lessons British history con-tained for America on the impeachment issue were quickly extin-guished by political developments. After the rise of ministerial re-sponsibility to Parliament, impeachment in England became a deadletter. In America it remains a live and vital option.

22 Supra note 11, at 175-178.23 The literature is vast, but consult Stephen Horn, The Cabinet and Congress

(1960) and Walter Earl Travis, ed., Congress and the President (1967).24 Berger discusses the difference between the English and American con-

ceptions of "treason" (I 54-55), but this issue is explored with greater care byArthur Bestor in his review of Berger's Impeachment, 49 Wash. L. Rev. 255,259-260 (1973). For additional corrections to Berger's thesis, see Clayton Roberts,"The Law of Impeachment in Stuart England: A Reply to Raoul Berger," 84Yale L. J. 1419 (1975).


B. Investigations vs. Executive Privilege

Berger states that neither the "congressional power of inquirynor executive privilege are expressly mentioned in the Constitution"(E 10). To demonstrate that the investigative power is neverthelessimplied in the Constitution, while executive privilege is not, heturns to English precedents. From McGrain v. Daugherty (1927) heextracts a statement that the British Parliament regarded the powerto secure needed information-by investigatory means-as an attri-bute of the power to legislate. Berger carries this a step further:"inasmuch as the congressional power of inquiry is thus based onparliamentary practice, that practice should likewise serve as the in-dex of the scope of the power. With but one exception that scarcelyruffled the historical stream, I found no objection by the Crown orany Minister to what was virtually untrammeled parliamentarypower of inquiry into executive conduct" (E 11). Pages 15-31 ofExecutive Privilege are devoted to a review of parliamentaryinquiries.

Having proved to his satisfaction that the power to investigateis grounded solidly in British constitutional history, he shows howfeeble is the case for a comparable power of executive officers towithhold information. The tension between these two powers re-ceives this treatment: "Only if there is encroachment by the legisla-ture ' on a pre-1787 attribute of the executive power, or if that attri-bute can be traced to a constitutional grant, does the separation ofpowers become relevant" (E 12).

What is meant by a pre-1787" attribute of executive power? Forsomeone who inveighs against the doctrine of inherent power, thisis a curious approach. Apparently the purpose is to contrast theelaborate history of legislative investigations in England with theskimpy precedents for withholding information. As he states on thesame page: "No pre-Convention history was cited by Messrs. Rogersand Rehnquist to prove that the right of the executive to refuseinformation to Congress for the protection of the `national interest'was `firmly rooted in history and precedent.' " How could suchprecedents be discovered in America if a separate national executivewas not recognized by a constitutional charter in the years prior to1787? The separation of powers issue becomes "relevant" preciselybecause the Constitution provides for it. For a contemporary case,in which the congressional investigatory power is pitted against thepower of executive officials to withhold information, see United


States v. American Telephone & Telegraph Co. Judge Leventhal ofthe D.C. Circuit has been trying to effect some compromise betweena House subcommittee and the Justice Department. The separationof powers doctrine is very much at the heart of this dispute andLeventhal's handling of it. 2 5

_ British precedents mislead for yet another reason. The investiga-tive power of Congress falls far short of that accorded the BritishParliament, which regarded its use of the contempt power and itsdetermination of its privileges as wholly immune from judicial re-view. In our system, Congress is subject to the supervision of thecourts. The authority of Congress to punish citizens for contemptof its authority, or for a breach of its privileges, "can derive no sup-port from the precedents and practices of the two Houses of theEnglish Parliament, nor from the adjudged cases in which theEnglish courts have upheld these practices.

"26

C. The Pardon Power

Other than a few brief references in Impeachment, Berger doesnot discuss the President's pardon power, but that is the one area inwhich it is appropriate to turn to British precedents for guidance.The American courts rely on the English conception of the pardon-ing function because the power granted to the President was in gen-eral language, the phraseology familiar to the common law ofEngland, and no attempt was made at the Philadelphia Conventionto define or limit it. 2

7

Chief Justice Taft, in Ex parte Grossman (1925), acceptedEnglish practices as authoritative in construing the pardon power. 28

He built upon Supreme Court sentiments reaching back almost acentury. In United States v. Wilson (1833) the Supreme Court stated:

As this [pardon] power had been exercised from time immemorialby the executive of that nation whose language is our language,and to whose judicial institutions ours bear a close resemblance; weadopt their principles respecting the operation and effect of apardon, and look into their books for the rules prescribing the

26 For example, United States v. American Telephone & Telegraph Co., CivilNo. 76-1712 (D.C. Cir. Oct. 20, 1977).

26 Kilbourn v. Thompson, 103 U.S. 168, 189 (1881). See also Marshall v.Gordon, 243 U.S. 521, 533-541 (1917); Watkins v. United States, 354 U.S. 178,192 (1957); and Louis Fisher, The Constitution Between Friends 140-150 (1978).

27 W. W. Humbert, The Pardoning Power of the President 34-35 (1941).28 267 U.S. 87, 110-113.

188 THE POLITICAL' SCIENCE REVIEWER

manner in which it is to be used by the person who would availhimself of it.

29

III. ATTITUDE TOWARD JUDICIAL REVIEW

Berger's first book, Congress v. The Supreme Court, representsan extended and detailed defense of judicial review, especially whenused to curb congressional excesses. To confine the courts merely tostriking down "clear mistakes" by legislators, as James BradleyThayer counseled, seemed to Berger to have "its limitations in ourdizzily changing world" (C 338). Still, he ends his book by recom-mending that the nay-saying function should not expand into alegislative, policymaking role.

That proposition is presented ever more starkly in Governmentby Judiciary. He chides the present generation, "floating on a cloudof post-Warren Court euphoria," for applauding a Court "whichreads its libertarian convictions into the Fourteenth Amendment

." (G 3). Judicial review should be "limited to policing consti-tutional boundaries and divorced from participation in policymak-ing" (G 355). For 150 years, Berger claims, the Supreme Court wascontent with a policing function: "even the headstrong laissez-faireCourt merely acted as a nay-sayer. It fell to the Warren Court toinitiate policy when the legislature and executive failed to act, totake the lead in deciding what national policy ought to be" (G 305-306).

A. Judicial Policymaking

We are left with a dichotomy between "nay-saying" (permissible)and "initiating" (impermissible). Policymaking is for the legislature,not the courts. But everything we know about the governmentalprocess runs counter to distinctions of this kind. In his 1921 classicstudy on the judicial process, Benjamin Cardozo devoted an entirechapter to "The Judge as a Legislator." Within limits a judge legis-lates, and does so in a creative, not merely a negative, way. Judgesand legislators share many common qualities:

The choice of methods, the appraisement of values, must in theend be guided by like considerations for the one as for the other.Each indeed is legislating within the limits of his competence. No

29 52 U.S. 150, 160. Also citing British precedents for the pardon power areBrown v. Walker, 161 U.S. 591, 599 (1896) and Ex parte William Wells, 59 U.S.(18 How.) 307 (1855).


doubt the limits for the judge are narrower. He legislates only be-tween the gaps. He fills the open spaces in the law. . . . None theless, within the confines of those open spaces and those of precedentand tradition, choice moves with a freedom which stamps its actionas creative.30

It is too late in the day to pretend that judges "find" the lawrather than "make" it. Jeremiah Smith, who taught law at Harvardafter a career on the New Hampshire Supreme Court, was refresh-ingly candid on this point. When asked "Do judges make law?" heresponded: " 'Course they do. Made some myself." 31 Even Bergeradmits to "lawmaking" by Chief Justice Marshall (G 386). BetweenMarshall and the Warren Court there are any number of examplesto show that the Supreme Court went far beyond a nay-sayingfunction.

In 1886 the Supreme Court decided-without hearing or argu-ment-that corporations were "persons" within the meaning of theFourteenth Amendment." In 1890 the Supreme Court assumed foritself final review powers over legislative determinations regardingrailroad fares, freight rates, and other charges for public accommo-dation. Justice Bradley, joined by Gray and Lamar, dissented fromthe majority opinion which he regarded as saying "in effect, if not interms, that the final tribunal of arbitrament is the judiciary; I say itis the legislature. I hold that it is a legislative question, not a judicialone, unless the legislature or the law, (which is the same thing,) hasmade it judicial, by prescribing the rule that the charges shall bereasonable, and leaving it there."

33

In 1895, in the Income Tax Case, Justice White (joined byHarlan) charged that the Court had amended the Constitution byjudicial fiat: "If it was necessary that the previous decisions of thiscourt should be repudiated, the power to amend the Constitutionexisted and should have been availed of." 34 In 1911 the Courtadopted the "rule of reason" in interpreting the Sherman AntitrustAct. Justice Harlan wrote a lengthy dissent, pointing out that theCourt had read into the Act by way of "judicial legislation" an

30 Benjamin N. Cardozo, The Nature of the Judicial Process 113-115 (1921).31 Paul A. Freund, The Supreme Court of the United States 28 (1961).32 Santa Clara Co. v. South. Pac, Railroad, 118 U.S. 394 (1886). See Howard

Jay Graham, "The 'Conspiracy Theory' of the Fourteenth Amendment," 47 YaleL. J. 371 (1938) and 48 Yale L. J. 171 (1938).

33 Chicago, Milwaukee & St. Paul R.R. Co. v. Minnesota, 134 U.S. 418, 462(1890). See Smyth v. Ames, 169 U.S. 466 (1898).

34 Pollock v. Farmers' Home Loan & Trust, 157 U.S. 429, 639 (1895).


exception that was not placed there by Congress. The Court's inter-pretation modified an act of Congress and "deprived it of practicalvalue as a defensive measure against the evils to be remedied."3 5 Hecondemned the tendency in the country to bring about the amend-ing of constitutions and legislative enactments "by means alone ofjudicial construction.

"36

This is the history of the Supreme Court most of us are familiarwith. Judicial policymaking is not an invention of the WarrenCourt, to be exorcised lest we lose our freedoms. It is far better toadmit that courts make policy and to criticize individual decisionsthan indulge in the fiction that the Warren Court strayed from tra-ditional practice. Why believe that previous courts carried out themechanical task of placing statutes alongside the Constitution to seethat the two conform? We would be associating ourselves with thequaint picture offered by Justice Roberts in 1936:

When an act of Congress is appropriately challenged in the courtsas not conforming to the constitutional mandate the judicial branchof the Government has only one duty-to lay the article of theConstitution which is invoked beside the statute which is chal-lenged and to decide whether the latter squares with the former.

37

Berger holds discordant views on the manner in which the courtsoperate. In Government by Judiciary he is highly critical of free-wheeling interpretations by Justices who impose their own predilec-tions upon the public. Quite a different tone appears in Impeach-ment, where Berger discovers magical powers of judicious calm andsweet reasonableness in the courts. He would not leave the impeach-ment decision solely to the Senate, for one cannot expect of thatbody the kind of self-restraint exercised by the courts:

It is one thing, however, to expect self-restraint of judges schooledto disciplined, dispassionate judgment, and not subject to the gustsof faction, and something else again to expect self-restraint of abody predominantly political in character and which both in En-gland and the United States has been unable to shake off partisanconsiderations when sitting in judgment. (I 118)

35 Standard Oil v. United States, 221 U.S. 1, 99.35 Id. at 105. For recent commentary see Jack G. Day, "Why Judges Must

Make Law," 26 Case West. Res. L. Rev. 563 (1976).37 United States v. Butler, 297 U.S. 1, 62 (1936). Ironically, Stone's dissent in

Butler accused Roberts of making a "tortured construction" of the Constitution;id. at 87.


C. Original Intent

Berger urges us to look at the Constitution itself, "stripped ofjudicial incrustations" (G 297). A nice phrase, but elsewhere hiswritings are filled with court rulings that support his conclusions onexecutive privilege, the war power, congressional investigations, andeven his view of "Government by Judiciary." One has only to skimhis books, articles, and presentations before congressional commit-tees to see the frequency with which he cites court decisions to sup-port his argument. Whence comes the removal power? From a "ju-dicial incrustation," of course. Notes Berger: "In curtailing thePresident's power to remove a member of his Cabinet, the Tenureof Office Act unconstitutionally invaded his exclusive prerogative.That was settled in our time by Myers v. United States" (I 280). Iagree that the Tenure of Office Act encroached upon the President'sremoval power, but it is ironic for Berger to depend on a court rul-ing for an "exclusive prerogative" that is not expressly stated in theConstitution or discussed during the Constitutional Convention.

A chapter of Government by Judiciary is devoted to the impor -

tance of original intent. Berger deplores the views of those whoregard inquiries into the framers' intent as "verbal archeology" and"antiquarian historicism." The loose idea of a "living constitution"seems to him anathema to operating under fixed principles and rules(G 363). "To hold otherwise is to convert the `chains of the Constitu-tion' to ropes of sand" (G 371).

Berger is right to challenge those who dismiss the writings andbeliefs of the framers as part of a dead past. We should not cut tiesto that legacy. But neither can we seek guidance on every issue asunderstood by men who lived two centuries ago without taking intoaccount the changes in our political culture since that time.

Even if we could ignore "judicial encrustations" and search therecords for "original intent," there is no assurance that the resultswould be any more satisfactory than judicial policymaking. Quitethe contrary. Dred Scott v. Sandford (1857) is widely regarded as oneof the major self-inflicted wounds on the Supreme Court. ChiefJustice Taney, holding that free blacks were not "citizens" withinthe meaning of Article III, and therefore unable to bring suit infederal court, put the whole weight of his analysis on the meaningof citizen in 1787. His approach mirrors, I think, Berger's own ruleof constitutional interpretation:


No one, we presume, supposes that any change in public opinionor feeling, in relation to this unfortunate race, in the civilizednations of Europe or in this country, should induce the court togive to the words of the Constitution a more liberal constructionin their favor than they were intended to bear when the instrumentwas framed and adopted. Such an argument would be altogetherinadmissible in any tribunal called on to interpret it. If any ofits provisions are deemed unjust, there is a mode prescribed in theinstrument itself by which it may be amended; but while it remainsunaltered, it must be construed now as it was understood at thetime of its adoption. It is not only the same in words, but the samein meaning, and delegates the same powers to the Government, andreserves and secures the same rights and privileges to the citizen;and as long as it continues to exist in its present form, it speaksnot only in the same words, but with the same meaning and intentwith which it spoke when it came from the hands of its framers,and was voted on and adopted by the people of the United States.Any other rule of construction would abrogate the judicial char-acter of this court, and make it the mere reflex of the popularopinion or passion of the day. 38

C. Desegregation and Reapportionment Decisions

Berger attacks the Warren Court chiefly for its decisions in thedesegregation and reapportionment cases. "The historical records,"according to his findings, "all but incontrovertibly establish that theframers of the Fourteenth Amendment excluded both suffrage andsegregation from its reach" ( G 407). His approach is essentially thatof Justice Roberts: alongside the Fourteenth Amendment he placesBrown v. Board of Education (1954) and Reynolds v. Sims (1964)and concludes that those decisions are not equivalent to the consti-tutional provision. It is a beguiling, but I think unpersuasive,analysis.

To start with Brown, he has remarkably little discussion on theCivil Rights Cases of 1883 (G 76, 191, 222) and the "separate butequal" holding in Plessy v. Ferguson (G 128, 324). We are in doubtas to whether Berger is satisfied with those decisions. We ought toknow where he stands on each. Nor is there any discussion aboutthe many cases between Plessy and Brown that provided a transition

3860 U.S. (19 How.) 393, 426. This passage has been cited by Alexander M.

Bickel, "The Original Understanding and the Segregation Decision," 69 Harv. L.Rev. 1, 3 (1955) and by Dean Alfange, Jr., "On Judicial Policymaking and Con-stitutional Change: Another Look at the Òriginal Intent' Theory of Constitu-tional Interpretation," 5 Hastings Const. L. Q. 603, 611-16 (1978).


and eventual abandonment of the separate-but-equal doctrine.Berger does not mention Pearson v. Murray (1936), Missouri ex rel.Gaines v. Canada (1938), Sipuel v. Board of Regents (1948), Sweatt v.Painter (1950), or McLaurin v. Oklahoma• State Regents (1950). 39

Each decision, determined on the basis of the Fourteenth Amend-ment, struck down various efforts to exclude blacks from state edu-cational institutions: offering them opportunities out-of-state, cre-ating separate law schools, and other contrivances. Does Berger dis-agree with those holdings? If he finds them acceptable, preciselywhere did Brown go wrong?

Berger looks to the Civil Rights Act of 1866 for guidance indetermining the meaning and scope of the Fourteenth Amendment( G 22-36). The Act provided that the inhabitants of every race shallhave the same right "to make and enforce contracts, to sue, be par-ties, and give evidence, to inherit, purchase, lease, sell, hold and con-vey real and personal property. .." Once we admit property rights,the Fourteenth Amendment becomes a natural instrument forattacking segregation.

Consider the cases involving city ordinances that prohibitedblacks from occupying houses in blocks dominated by white fami-lies. In 1917 a unanimous Supreme Court turned to the FourteenthAmendment for authority to strike down such ordinances. 4° Evenprivate agreements to exclude blacks from residential areas werestruck down by the Court (long before Chief Justice Warren) asviolative of the Equal Protection Clause of the Fourteenth Amend-ment, since the restrictive agreements required judicial enforcementby the State. The Vinson Court, in a unanimous ruling, held that it"cannot be doubted that among the civil rights intended to be pro-tected from discriminatory state action by the Fourteenth Amend-ment are the rights to acquire, enjoy, own and dispose of prop-erty." 4

1 Does Berger take issue with the segregated housing decisions?By excluding any discussion on these intermediate cases, Berger

makes it seem that Brown appeared suddenly out of nowhere. Infact, decade after decade, the courts had been systematically chip-ping away at the foundation of Plessy. Berger fears that judges areat liberty to make the Constitution mean whatever they want it to

39 In order of their listing: 182 Atl. 590 (1936); 305 U.S. 337 (1938); 332 U.S.631 (1948); 339 U.S. 629 (1950); and 339 U.S. 637 (1950).

4o Buchanan v. Warley, 245 U.S. 60 (1917). See also Harmon v. Tyler, 273U.S. 668 (1927) and Richmond v. Davis, 281 U.S. 704 (1930).

41 Shelley v. Kraemer, 334 U.S. 1, 10 (1948).


mean, but the slow and tortuous history of desegregation cases fromthe 1930s to 1954 strongly suggest that judges move cautiously withinwell-perceived boundaries and limitations.

For his books on Impeachment and Executive Privilege, Bergerraces back centuries in English history to place his story in properperspective. In sharp contrast, Government by Judiciary freezes his-tory by taking a snapshot of the antislavery movement as it stood atthe time of the 39th Congress. The treatment that Berger gives tothe abolitionist movement is markedly one-sided. He claims that the"key" to understanding the Fourteenth Amendment "is that theNorth was shot through with Negrophobia, that the Republicans,except for a minority of extremists, were swayed by the racism thatgripped their constituents rather than by abolitionist ideology"(G 10). Why give such emphasis to that side of the picture whenthere was obviously, operating at the same time, a deep repugnanceto Slaves Codes and Black Codes (as Berger admits, G 25-26)? Bydiscounting the abolitionist movement and concentrating on racistfeelings, Berger makes it incomprehensible why Congress and theStates, reflecting the public mood, would add to the Constitutionthe Thirteenth, Fourteenth, and Fifteenth Amendments. He paintsan artificial backdrop against which "we must measure claims thatthe framers of the Fourteenth Amendment swallowed abolitionistideology hook, line, and sinker" (G 14). Who makes such claims? Ifno one, why take a measurement?

As for Reynolds v. Sims, Berger states that malapportionment"was fastened on the Constitution from the outset by the compro-mise which permitted three-fifths of the voteless Negro populationto be counted for purposes of representation in the House of Rep-resentatives" and "was also embedded in the Constitution by theprovision for two Senators from each State" (G 72). So what? Thethree-fifths formula was erased by constitutional amendment, whilethe Senate compromise offers not a shred of support for malappor-tionment in the States or in the House of Representatives.

In Nixon v. Herndon (1927), the Supreme Court invoked theEqual Protection Clause of the Fourteenth Amendment to declareillegal state legislation that prohibited participation by blacks inprimary elections. 42 Holding to his position that the Amendmentexcluded questions of suffrage, Berger takes issue with Holmes'opinion for the majority (G 166-167). By the same reasoning I sup-

42 273 U.S. 536.


pose that Berger would claim that the Court overstepped its bounda-ries in Nixon v. Condon, another case which used the FourteenthAmendment to strike down state efforts to exclude blacks fromprimaries.' 3

Berger notes that the legislative history of the Amendment fre-quently refers to "fundamental rights" and to "life, liberty, andproperty" (G 20). He quotes approvingly from Justice Washington,in Garfield v. Coryell (1823), that the scope of privileges and im-munities includes "the enjoyment of life and liberty, with the rightto acquire and possess property of. every kind and to pursue andobtain happiness and safety" (G 31). Defined in that manner, it isdifficult to conceive how someone in the twentieth century couldacquire and possess property and pursue happiness without the rightto vote or the right to an education.

As with the desegregation case, Berger analyzes Reynolds v. Simsin total isolation from other court decisions. There are only fivebrief references to Baker v. Carr (1962). Astonishingly, not a wordappears about Colegrove v. Green (1946) in which the SupremeCourt declined to use the Fourteenth Amendment to force Illinoisto reapportion districts that ranged in size from 112,116 to 914,053.Because of the imminence of elections in Illinois, Justice Rutledgeconcluded that it would be too chaotic to strike down the districtingsystem, but he agreed with the dissenting Justices (thereby forminga majority) that the Court would have jurisdiction to decide suchcases in the future.

To lay the groundwork for Reynolds, it seems essential to at leastidentify some of the major events between 1946 and 1964. The 1950census disclosed a massive population shift to the urban and sub-urban areas. Legislatures were clearly unwilling to redistrict on theirown, even when their constitutions required it. Colegrove receiveddevastating reviews in the law journals. Frankfurter, writing for themajority in Colegrove, had declared that certain issues "of a pecu-liarly political nature" were not proper for judicial determination:"It is hostile to a democratic system to involve the judiciary in thepolitics of the people." He offered a completely impractical solution:"The remedy for unfairness in districting is to secure State legisla-tures that will apportion properly, or to invoke the ample powers ofCongress."" How could voters "secure" the legislature they wanted

43 286 U.S. 73 (1932).44 Colegrove v. Green, 328 U.S. 549, 556 (1946). See also MacDougall v. Green,

335 U.S. 281 (1948).


if their votes had been deliberately diluted? If Congress decided notto invoke its "ample powers" what then-sit back and tolerate sys-tematic disfranchisement? What could be more hostile to a demo-cratic system?

Gomillion v. Lightfoot (1960) is not mentioned by Berger, eventhough it concerned racial gerrymandering. Justice Whittaker, in aconcurring opinion, preferred to use the Equal Protection Clause ofthe Fourteenth Amendment as being more straightforward thanJustice Frankfurter's majority opinion which rested on the FifteenthAmendment. 46 In the same year as Gomillion, at the state level,courts were adopting the view that the right to equal suffrage andequal representation was guaranteed by the Equal Protection Clauseof the Fourteenth Amendment. Legislative inaction had requiredjudicial activism. The New Jersey Supreme Court said that if "byreason of passage of time and changing conditions the apportion-ment statute no longer serves its original purpose of securing to thevoter the full constitutional value of his franchise, and the legisla -

tive branch fails to take appropriate restorative action, the doors ofthe courts must be open to him. . . . "46

By the time of Baker v. Carr, Frankfurter was among the dis-senters, warning that a judicial remedy did not exist for every politi-cal mischief and that appeal "must be to an informed, civically mili-tant electorate." How could such an informed and aroused electorateexercise this great power under a malapportioned system controlledby legislators who wanted to keep it that way? Justice Clark, con-curring in Baker, noted that the majority of voters had been caughtup in a "legislative strait jacket." 47

At no time does Berger offer constructive solutions to the prob-lem of malapportionment. Certainly the apportionment decisions ofthe Warren Court are subject to criticism, 48 but a critic has a re -

sponsibility to descend to the real world and confront the crises thatexist, functioning not merely as a nay-sayer but suggesting moreappropriate options. Alexander Bickel in The Supreme Court andthe Idea of Progress (1970) was sharply critical of the desegregation

48 364 U.S. 339 (1960).46 Asbury Park Press v. Woolley, 33 N.J. 1 (1960), cited by Richard C. Cortner,

The Apportionment Cases 70 (1970).47 Baker v. Carr, 369 U.S. 186, 259 (1962).48 For sophisticated treatments on the reapportionment problem see Robert G.

Dixon, Jr., Democratic Representation (1968) and Robert B. McKay, Reappor-tionment (1965).


and reapportionment decisions but at least he placed them in arealistic historical context and offered alternative courses of action.Also, Bickel differed not so much with the holdings in Brown v.Board of Education and Baker v. Carr but with subsequent decisionsand the deep involvement of the courts in administrative matters.

In a study published in 1977 by Vantage Press, Hermine HertaMeyer analyzes the Fourteenth Amendment in a manner that seemsto me more objective and coherent than Berger's treatment. Whileshe independently reaches the same conclusion that the SupremeCourt has misused the Amendment in applying it to voting rightsand segregation at the state level, she finds the Brown decision "ac-ceptable" on the theory that there should be no classification accord-ing to race. 49 She directs her fire particularly at subsequent decisionsthat forced compulsory integration on the schools through suchmeans as busing, redistricting of attendance zones, and affirmativeaction programs. Furthermore, far more than Berger, Meyer findsthat the Fourteenth Amendment was conceived in ambiguity andconfusion (especially the Equal Protection Clause). Compared toBerger, therefore, her book contains less certitude and dogmatism asto original intent: "Concededly, the fourteenth amendment offersdifficulties of interpretation, not so much by the text itself as by thediscrepancy between what its language says and what its framers saidit was supposed to' mean.

"so

IV. STYLE AND SUBSTANCE

In his prefaces, Berger portrays himself as a scholar in search ofthe truth, investigating each piece of evidence with a detached frameof mind. He is a scholar who "dispassionately" surveys the conflictsthat "agitate his fellows." To guide him on the path toward truth,he invokes his training and experience as a lawyer. Every lawyer, hesays, learns the cost of distorting or ignoring adverse facts. Adver-saries will uncover the weaknesses in a legal brief and "blow his caseout of the water." Caution, as well as the duty of a scholar "whodedicates himself to the pursuit of `truth,' dictates that one face upsquarely to everything that militates against his views " (E vii-viii).In another preface he states that the law practice "conditions a law-yer to discount his predilections, for he who selects only the favor-

49 Hermine Herta Meyer, The History and Meaning of the Fourteenth Amend-ment 248 (1977).

sold. at 265.


able and ignores the adverse facts risks having the èvidence' blow upin his face." Experience, "as well as the fact that I have no axe togrind, still less, passionate convictions rooted in social or economicprejudices, led me to make as dispassionate a search for the `facts'as I could, and to consider and weigh every objection to easyconventional assumptions" (C viii).

Berger does not come close to achieving these lofty goals. Twosouls, quite incompatible, dwell within him. Coexistent with hisquest for dispassionate analysis is a penchant for polemics, hyper-bole, and literary gerrymandering. Thus far my review highlightssome of those qualities, but they need to be underscored.

A. Polemics

For all his denials, what Berger prepares are well-honed, uni-dimensional lawyer briefs, stimulating in style but sorely lacking inbalance and objectivity. His books convey a crusading spirit, as whenhe says that "a polemical tone is inescapable; a student of history canno more avoid criticism of views which seem to him erroneous thandid the chemists who disputed the tenability of the phlogistontheory of combustion" (G 9). The writing is spiced with a petulantand pugnacious quality. He claims that in the eight years thatelapsed since publication of his articles on executive privilege, "noadvocate of executive privilege has come to grips with my critique.Perhaps this book will arouse the sleeping dogs, and I may learnfrom my critics" (E viii). A generous gesture: scholars may wake fromtheir slumbers and offer something useful to Berger.

In one of his frequent rebuttals to critics, Berger offers thisadvice to Arthur S. Miller: "One of the hoariest tactics of a debaterwith a weak case is to distract attention by ridiculing and attackingthe opposition." 51 It is an interesting sentence, for it applies so wellto Berger. A few pages later, in fact, when he turns to another un-friendly reviewer, Berger begins with this treatment: "Paul Brest-a young man in a hurry".. . . 62 In the use of distraction, ridicule,and launching attacks on the opposition, Berger has few peers.

In castigating the writings of Myres McDougal and Asher Lanson executive agreements, Berger states that they were "fired by zealin the midst of World War II to prevent another holocaust" (E 89).

51 Supra note 18, at 468.52 Id. at 470.


The two scholars fail because they are "word-intoxicated" (E 91).

Surely these passages do not advance Berger's argument in any sys-tematic, logical way, but he cannot resist his proclivity for ridicule.A memorandum by William P. Rogers, while serving as DeputyAttorney General during the Eisenhower Administration, receivesthis evaluation from Berger: "it is a farrago of internal contradic-tions, patently slipshod analysis, and untenable inferences" (E 164).When someone outside the legal profession had the nerve to chal-lenge Berger's scholarship, he was tossed to the side with this re-joinder: "A veteran lawyer may be permitted a smile when lecturedby a political scientist. ...

"53

B. Hyperbole

His book Executive Privilege illustrates Berger's affinity for ex-cesses. There is something tragic about a book-the product of somuch painstaking research-that contains in its title and generaltheme the proposition that executive privilege is a "myth." Otherthan saying that the origins of most myths are "lost in the mists ofantiquity" (E 1), Berger does not tell us what he means by myth. Iassume he means it in the dictionary sense: that the executive powerto withhold information rests on fiction and imagination, and thatwhoever claims such a power is guilty of a falsehood. Perhaps othersin government and academic life share Berger's view, but no namecomes to mind.

After the Supreme Court, in 1974, expressly recognized executiveprivilege as an implied power of the President, Berger has a try atvindication:

I wrote Executive Privilege in the context of Attorney GeneralWilliam Rogers' claim of absolute, "uncontrolled" presidential dis-cretion to withhold information from Congress and the courts,heavily amplified by President Nixon's claim that he was notamenable to judicial process. Those claims, I maintained, wereuntenable, and that view has now been confirmed by the SupremeCourt in United States v. Nixon.

54

This is grossly misleading. The fact that Rogers was wrong doesnot make Berger right. Moreover, although the Court dismissed an

53 Raoul Berger, "Judicial Review: Countercriticism in Tranquility," 69 Nw.U. L. Rev. 390, 422 (1974). The political scientist is Joseph Cooper of RiceUniversity, author of a critical review of Congress v. The Supreme Court appear-ing at 85 Harz). L. Rev. 702 (1972).

54 Supra note 1, at 603.


absolute claim for constitutional privilege, surely it parted companywith Berger by recognizing a qualified privilege. It is not merely in-accurate but inconsistent for Berger to say that the Supreme Court"confirmed" his view of executive privilege. He berated one reviewerfor accepting United States v. Nixon "without blinking, delicatelycircling the fact that Bergen's `myth' charge is utterly incompatiblewith Chief Justice Burger's discovery that a privilege for confidentialcommunication is ìnextricably rooted in separation of powers.' "55

Berger is drawn to extreme formulations. Without the power ofjudicial review over impeachment, "Congress would be free to shakethe other branches to their very foundations" (I 119). We have sur-vived nearly two centuries without this form of judicial review,irrespective of what Congress "would be free" to do.

"Starting from a trickle," he writes in Executive Privilege, "ex-ecutive agreements made by the President alone-which can involvelarge financial, and possibly military, commitments and which haveinvaded the area of tariffs and foreign commerce that was made theexclusive province of Congress-have since 1930 mounted to a flood"(E 140-141). One can reach this crescendo only by mixing apples andoranges. Berger starts out by discussing "executive agreements madeby the President alone" but then slips into quite a different gear: thearea of tariffs and foreign commerce. Since the authority to enterinto executive agreements for 'tariffs and foreign commerce has beendelegated by statute, how can this constitute an "invasion"? Thetrickle has indeed become a flood, but primarily at the invitation ofCongress, not by unilateral executive actions."

Depending on which book you read, Berger has us look withalarm at each of the three branches. His first book emphasized con-gressional tyranny: "One who would understand the significance ofjudicial review for the Founders does well to start from the fact thatin 1787 there was widespread fear of oppression by a remote federalgovernment, centered largely in dread of 'legislative despotism' "(C 8). He had to shift the tone for Executive Privilege, for now heurged Congress to fight back against the President. He paints a bleakpicture: "It is incongruous to attribute to a generation so in dreadof executive tyranny an intention to give a newly created executivea blank check" (E 58). Besides creating another straw man (who con-

55 Supra note 9, at 921.56 Supra note 4, at 44-47 and 133-155. See also supra note 11, at 204-213.


tends that the Framers wanted to give the President a "blankcheck"?), Berger conveniently switches the source of apprehension.

By the time we reach Government by Judiciary, the courts arethe bugbear: "If government by judiciary is necessary to preserve thespirit of our democracy, let it be submitted in plain spoken fashionto the people-the ultimate sovereign-for their approval" (G 418).

This too is hyperbole. No one responsibly argues for "governmentby judiciary" (whatever that means), any more than advocacy of"government by legislature" or "government by executive." Bergercries wolf so frequently that it dulls the senses.

These extravagant statements from Berger detract from the moreuseful portions of his books. A helpful reminder comes from WilliamStrunk's Elements of Style: "When you overstate, the reader will beinstantly on guard, and everything that has preceded your overstate-ment, as well as everything that follows it, will be suspect in hismind because he has lost confidence in your judgment or yourpoise."

C. Literary Gerrymandering

"Statements, Berger once reminded a critic, are themselvesfacts, not merely èvidence' to substantiate "a theory of what theauthor believed." 67 On the contrary, statements can be facts, but thetwo are far from identical. Berger believes that a point is naileddown simply by bringing in a statement from a so-called authority.The context of the statement (or the author's credentials) are oftenignored.

For example, Berger draws from the Supreme Court the state-ment, in Anderson v. Dunn (1821), that "the genius and spirit of ourinstitutions are hostile to the exercise of implied powers" (E 46). Itis a dandy statement, for Berger can use it to decry the use of thedoctrine of implied powers when applied to executive privilege. Butin this decision, as in others, it is fundamental to look at what theCourt did and not simply what it said. Our approach should be thatof the wary legislator who asked: `"I see what the law says, but whatdo it do?" In Anderson, the Court recognized that Congress pos -

sessed a number of implied powers: the power to investigate, to issuewarrants to compel a party's appearance, and the power to punish

57 Supra note 53, at 396.


for contempt. 68 Why leave with the reader, as Berger does, theimpression that the Supreme Court is hostile to implied powers?

Berger indulges in overkill, amassing a profusion of statementsfrom supposed authorities. He is indiscriminate in reaching out for"evidence." In defending the right of Congress to supervise execu -

tive agencies, he selects a passage from Woodrow Wilson (E 4). Laterhe chastises Wilson for making "grandious" claims about Presiden-tial prerogatives in foreign relations (E 117). Why is Wilson a re-spected authority for one statement and a dangerous Pied Piper foranother? Berger relies on Myres McDougal in Government by Ju-diciary (p. 314) after excoriating him in Executive Privilege (pp.144-156).

As though uncertain of his case, Berger constantly associates him-self with men of eminence. In one place he states: "One cannot im-prove on Professor Louis Henkin's summation" (E 50), even thoughBerger and Henkin are worlds apart in their approach to the Presi-dency and constitutional law. 59 Berger especially likes to fraternizewith illustrious members of the Court. At one time he remarks:"Like Chief Justice Burger and Justices Douglas and Frankfurter,I assert the right to look at the Constitution itself, stripped of ju-dicial incrustations (G 297), while at another point he suggests thata critic "might have added that Berger does not stand alone but isin the company of Justice Holmes, Justice Frankfurter, and JudgeLearned Hand.

"so

To another critic he responds: "Let it suffice that where he foundnothing whatever deserving of praise, the whole an exercise in fu-tility, scholars of greater distinction have held to the contrary." 81

Also ad hominem is his reaction to what he regards as a "rancorousreview" by Ralph Winter, 62 who Berger claims "substitutes deri-sion and expletives for analysis." In defense, Berger simply notesthat Winter's views "run counter to those of more distinguishedreviewers." 63

58 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 225 (1821).59 For example, see Henkin's Foreign Affairs and the Constitution (1972);

"The Right to Know and the Duty to Withhold: The Case of the PentagonPapers," 120 U. Pa. L. Rev. 271 (1971); and "Executive Privilege: Mr. NixonLoses But the Presidency Largely Prevails." 22 UCLA L. Rev. 40 (1974).

60 Supra note 53, at 397.6i ld. at 411.62 83 Yale L. J. 1730 (1974).63 Raoul Berger, "The Incarnation of Executive Privilege," 22 UCLA L. Rev.

4, 11 (1974).


Gratuitous associations make Berger's case suspect. He surroundshimself with oracles instead of demonstrating to the reader (his jury)the cogency of his argument. A skillful polemist, he engages inaggressive disputations, always on the lookout for opportunities torefute someone's error. He is entitled to high marks for that kind oftrade, which serves a purpose, but scores less well as a scholar de-voted to objectivity. For all his training as a lawyer, the diligenceand industry with which he pursues his craft, and the forcefulnessof his argument, his presentation is singularly unpersuasive. So fre-quently does he shade his facts that credibility is lost. He produceswhat he condemns: result-oriented jurisprudence.

LOUIS FISHER

Library of Congress

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RAOUL BERGER ON PUBLIC LAW - isistatic.org · RAOUL BERGER ON PUBLIC LAW ... 174 THE POLITICAL SCIENCE REVIEWER ... Another legislative act in 1785 gave Jay full power to nego-