Both Kevin Gutzman and I have offered a substantial reading list for our constitutional history course at Liberty Classroom, but for those who have not had the time to delve into some of the volumes, I thought I would offer a few quotations from two of the books I recommended for the course, both by Raoul Berger. Berger was arguably the most important and misunderstood legal scholar of the late twentieth century. The left loved him during Watergate, but they could not understand how his withering assault on executive privilege could mesh with his equally devastating attack on the Earl Warren Court and the incorporation of the 14th Amendment during the Civil Rights era. Berger disliked modern political labels and vigorously denied he was either a liberal or a conservative. Rather, he was what I call an American traditionalist in favor of the federal republic of the founding generation, a republican in the Jeffersonian mold. Most important, Berger was a real scholar.
His books are hard to find and often pricey, but many academic libraries still carry several of his works, and they are a must read for anyone interested in an originalist perspective. Let these few remarks serve to whet your appetite.
From Executive Privilege: A Constitutional Myth:
“Executive privilege—the President’s claim of constitutional authority to withhold information from Congress—is a myth.”
“Impeachment [of the President] lies for corruption, bribery, and other high misdemeanors, and, as Blackstone stated, for action contrary to law, as well as subversion of the Constitution, that is, usurpation of power.” (I am partial to this quote. I stated in my Founding Fathers Guide to the Constitution that every President in the 20th century should have been impeached.)
“Each generation tends to read history in the focus of its own preoccupations; each thinks that it enjoys a special vantage point. So it is that a contemporary re-evaluation of the protracted information-withholding controversy inevitably is colored by the extraordinary events of our time. Secret executive agreements that make commitments of unknown magnitude; presidential warmaking and bombing hooded in secrecy; escalation by stealth in Vietnam in the teeth of bleak intelligence estimates not disclosed to the nation; ‘White House Horrors’—the words are those of John Mitchell, former partner and Attorney General of President Nixon—spreading a miasma of encroachments on individual rights. These events have confirmed Patrick Henry’s warning that secrecy in government is an ‘abomination’; it is a main instrument in the corruption and arrogation of power. If the nation has not relearned that lesson from the secret escalation in Vietnam, from the bold attempt to corrupt the electoral process that surfaced in Watergate, it is unteachable.” (Written in 1974; has anything changed?)
From Government by Judiciary: The Transformation of the Fourteenth Amendment:
“Historically the citizenry have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every state Constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protections against the federal government that State Constitutions already provided against the States.”
“To ‘interpret’ the Amendment in diametrical opposition to that intention is to rewrite the Constitution.”
“The nation cannot afford to countenance a gap between word and deed on the part of the highest tribunal, a tribunal regarded by some as the ‘national conscience.’ It should not tolerate the spectacle of a Court that pretends to apply constitutional mandates while in fact revising them in accord with the preference of a majority of the Justices who seek to impose their will on the nation….‘The people,’ in the words of five early State Constitutions, ‘have a right to require of their…magistrates an exact and constant observance’ of the ‘fundamental principles of the Constitution.’ Among the most fundamental is the exclusion of the judiciary from policymaking.”
