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05/17/2018

Stephen Presser on Raoul Berger
Michael Ramsey

At Law and Liberty, Stephen Presser (Northwestern): The Coming Resurrection of Raoul Berger? A Remembrance of Government by Judiciary.  It begins: 

Raoul Berger (1901-2000) was the most important and daring voice in favor of an originalist approach to the Interpretation of the Constitution in the last third of the twentieth century. He was not, like many other academic theorists, someone who spent all his professional years as a tenured member of a prestigious faculty, although he was, for a few years, a professor at the law school of the University of California at Berkeley, and, following that, was Charles Warren Senior Fellow in Legal History, in residence at Harvard Law School. Before he was associated with law schools, however, Berger had been a successful concert violinist, and then an equally successful practicing lawyer and government bureaucrat. Once he embarked on his third or fourth (depending on how one counts) career, as a legal scholar, he achieved his greatest fame.  Berger first made an indelible mark for monographs on impeachment and executive privilege, works which quite clearly suggested unpardonable excesses on the part of the Republican, Richard Nixon. That work was of great comfort to Democrats and liberals, but Berger’s scholarship was non-partisan. When he embarked on the research that resulted in Government by Judiciary, and that consumed him for the last three decades of his life (he lived to be just shy of 100, and wrote almost until the end), the progressives were dismayed and the conservatives jubilant, because Berger, as an originalist, provided a remarkable historical pedigree for the notion that progressive jurists had, for many years, wrongly construed the Constitution.

Berger’s brand of originalism was a bit different from that of the most important federal judges, such as Antonin Scalia, but it was clear that Scalia owed a lot to Berger. Berger believed in what he called “original intention,” while Scalia (and, in time, most originalists) embraced what came to be known as “original understanding.” Ostensibly this was a difference between the belief that we should seek the subjective intention of the Constitution’s framers, and the notion that it was the objective meaning of the words they used which ought to guide us. Hence Scalia’s frequent recourse to contemporary dictionaries, and Berger’s frequent use of opinions expressed in contemporary debates, as, for example, in his masterwork, Government by Judiciary.

In practice there may not really be much of a difference between Scalia and Berger, since, for the most part, one’s subjective meaning is consistent with the contemporary understanding of the words used. Nevertheless, since one really cannot easily look inside the skulls of drafters, Berger’s views were something of an easy target for some critics, who dismissed him as naïve and misguided. Time, however, has tended to support Berger and tarnish his critics, as Berger’s thorough sifting of the primary sources and his relentless defense against those whom he called the “activists” (the defenders really of judicial law-making) pretty thoroughly demonstrated the brilliance and correctness of his basic points.

Berger has become something of a stock example for the discredited "old orignialism."  As this post suggests, a more nuanced account of Berger and his contemporaries would be useful in appreciating the origins of modern originalism.

Thanks to Mark Pulliam for the pointer.