Impeachment: The Constitutional Problems: Who Said That a 44 Year-Old Monograph Can’t Be Relevant?

R. B. Bernstein, City College of New York

In today’s atmosphere of constitutional sturm und drang, many are revisiting the 1972-1974 Watergate crisis, which forced President Richard M. Nixon to resign. The Studies in Legal History series played a supporting role in that crisis by publishing Raoul Berger’s Impeachment: The Constitutional Problems (1973). Impeachment made Berger a major figure in the impeachment debates. His stature as a leading constitutional scholar and a progenitor of originalist jurisprudence was evident then, and only grew over time.

Born in 1901 in the Ukraine, Berger came to the United States with his family in 1904. After a career as a violinist, he graduated from the University of Cincinnati and the Northwestern University School of Law, earning his LL.M. from the Harvard Law School. Following a legal career in government service and private practice, he taught at the University of California, Berkeley, Law School and became Harvard’s Charles Warren Senior Fellow in Legal History.

In the 1960s, Berger launched a second career as a constitutional historian. In his first book, Congress vs. the Supreme Court: An Exercise in Dialectic (1969), he analyzed the nature of congressional power over the Court’s jurisdiction. In his next book, Berger worked to develop law-review articles on impeachment that he had published in the 1960s into a book. Working closely with Stanley N. Katz, the first editor of Studies in Legal History, Berger crafted a formidable study focusing on impeachment in early modern England, which he identified as the key influence on the Constitution’s framers. The 1968-1970 controversies over Republican efforts (secretly backed by President Nixon) to impeach Justices William O. Douglas and Abe Fortas drove Berger’s interest. So, too, did the James Madison biographer Irving Brant, who responded to the Douglas and Fortas controversies by publishing Impeachment: Trials and Errors (1972).

Berger’s book dwarfed Brant’s in its scholarship, but they also differed on three substantive points. First, Berger maintained that impeachable offenses were not limited to indictable felonies but also included violations of the constitutional system’s central principles. Second, Berger claimed, an impeachment proceeding could be subject to judicial review. Third, he insisted, those concerned with judicial misconduct, incompetence, or corruption could forgo the unwieldy mechanism of impeachment and use instead the common-law writ of scire facias to remove federal judges – a remedy more legitimate than manipulation of courts’ dockets to keep cases away from judges deemed incompetent or unfit.

Berger’s argument for a broader understanding of impeachable offenses shaped the core of the controversy over impeaching Nixon. Rep. Peter J. Rodino (D-NJ), who chaired the House Judiciary Committee, reportedly was so fearful of fanning speculation about impeachment that he removed the jacket of Berger’s book while reading it, so that others would not see what he was reading.

Berger’s scholarship fueled the impeachment inquiry against Nixon in other ways. The House Judiciary Committee published an anthology, Impeachment: Selected Materials (1973), featuring Berger’s law-review article on impeachable offenses, the most influential argument of his Studies in Legal History volume. Also, Bantam issued mass-market paperback editions of Congress vs. the Supreme Court, Impeachment: The Constitutional Problems; and Executive Privilege: A Constitutional Myth (1974), a trilogy that Garry Wills praised as “one of the scholarly landmarks of our time.”

Berger’s subsequent work defined a new direction for constitutional scholarship. In a series of combative monographs, beginning with Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), and including studies of federalism and the death penalty, Berger used originalist methodology to challenge much of modern constitutional jurisprudence’s orthodoxy. Many former admirers challenged him on methodological and substantive issues; Berger fired back in what seemed to his critics to be endless law-review articles. He died in 2000.

Impeachment: The Constitutional Problems has lasted the longest of his books – but it has not gone unchallenged. In Impeachment in America, 1635-1805 (1984), historians Peter Charles Hoffer and N.E.H. Hull paralleled Berger’s conclusions about the meaning of impeachable offenses but disputed Berger’s emphasis on English sources; insisting that historians seeking to understand the development of impeachment in America had to consider American colonial, revolutionary, and early national sources.

Still, as it did during the 1998-1999 controversy over impeaching President Bill Clinton, Raoul Berger’s landmark study is again finding readers, as the nation considers whether the words and deeds of another president merit impeachment. Not bad for a 44-year-old monograph in a scholarly book series devoted to legal history.

 

Picture of Raoul Berger sourced from Liberty Fund (http://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment).

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