Raoul Berger (January 4, 1901 – September 23, 2000)
retrieved March 8, 2016 was an American
attorney and
professor
Professor (commonly abbreviated as Prof.) is an Academy, academic rank at university, universities and other post-secondary education and research institutions in most countries. Literally, ''professor'' derives from Latin as a "person who pr ...
at The
University of California at Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant univ ...
and
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class i ...
. While at Harvard, he was the Charles Warren Senior Fellow in American Legal History. He is known for his role in the development of
originalism
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conce ...
.
Early life
He emigrated to the United States with his family from
Ukraine in 1904. He first pursued studies as a concert violinist at the Institute of Musical Art in New York that culminated in his joining the
Cincinnati Symphony Orchestra
The Cincinnati Symphony Orchestra is an American orchestra based in Cincinnati, Ohio. Its primary concert venue is Music Hall. In addition to its symphony concerts, the orchestra gives pops concerts as the Cincinnati Pops Orchestra. The Cinc ...
as its 2nd Concert Master (1928-1932) and the 1st violinist of the Cincinnati String Quartet (1929-1932).
After earning his A.B. from the
University of Cincinnati
The University of Cincinnati (UC or Cincinnati) is a public research university in Cincinnati, Ohio. Founded in 1819 as Cincinnati College, it is the oldest institution of higher education in Cincinnati and has an annual enrollment of over 44, ...
in 1932, he abandoned his professional music career to study law at
Northwestern University School of Law
Northwestern University Pritzker School of Law is the law school of Northwestern University, a Private university, private research university. It is located on the university's Chicago campus. Northwestern Law has been ranked among the top 14, ...
, from which he graduated at age 35. He practiced law in Chicago before enrolling at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class i ...
where he earned his
Master of Laws
A Master of Laws (M.L. or LL.M.; Latin: ' or ') is an advanced postgraduate academic degree, pursued by those either holding an undergraduate academic law degree, a professional law degree, or an undergraduate degree in a related subject. In mos ...
degree (LL.M.) in 1938.
[
]
Career
Upon his graduation, Berger worked first for the Securities and Exchange Commission
The U.S. Securities and Exchange Commission (SEC) is an independent agency of the United States federal government, created in the aftermath of the Wall Street Crash of 1929. The primary purpose of the SEC is to enforce the law against market ...
, then as Special Assistant to the U.S. Attorney General
The United States attorney general (AG) is the head of the United States Department of Justice, and is the chief law enforcement officer of the federal government of the United States. The attorney general serves as the principal advisor to the p ...
, and, finally, as Counsel to the Alien Property Custodian
The Office of Alien Property Custodian was an office within the government of the United States during World War I and again during World War II, serving as a custodian to property that belonged to US enemies. The office was created in 1917 by ...
during World War II. Following the war, he entered private practice in Washington, D.C. where he remained until 1961.
Professor
Berger began teaching law at the University of California, Berkeley, School of Law
The University of California, Berkeley, School of Law (commonly known as Berkeley Law or UC Berkeley School of Law) is the law school of the University of California, Berkeley, a public research university in Berkeley, California. It is one of ...
in 1962 as its Regents' Professor and later became the Charles Warren Senior Fellow in American Legal History at Harvard University School of Law from 1971 to 1976.
His notable work was in the area of constitutional scholarship. Berger has written extensively about Impeachment
Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements.
In ...
, Executive Privilege
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and othe ...
, and the Fourteenth Amendment.
Berger was a popular academic critic of the doctrine of "executive privilege" and his writings, according to professor Vincent Crapanzano, played a role in undermining President Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
's constitutional arguments during the 1973–74 impeachment process.
In 1977, Berger unleashed a firestorm of controversy within the legal academy with his next book, '' Government by Judiciary''. In it, Berger claimed that the Warren Court
The Warren Court was the period in the history of the Supreme Court of the United States during which Earl Warren served as Chief Justice. Warren replaced the deceased Fred M. Vinson as Chief Justice in 1953, and Warren remained in office until ...
's expansive interpretation of the Fourteenth Amendment alternately distorted and ignored the intentions of the framers of that amendment as disclosed by the historical record. Berger presented arguments that the framers of the Fourteenth Amendment did not intend it to forbid segregated schooling.
The book is widely credited as the first work of legal scholarship from an originalist
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
perspective, although some originalists disagree with the conclusions Berger draws from the historical record. Berger further posited that the Warren Court expanded the authority of the judiciary without constitutional warrant.
Berger continued writing articles – often in response to his critics – until at least 1997. Berger died in 2000 at the age of 99.
Bibliography
His publications include:
* ''Congress v. The Supreme Court '' (1969)
* ''Impeachment: The Constitutional Problems'' (1972)
* ''Executive Privilege: A Constitutional Myth'' (1974)
* ''Government by Judiciary: The Transformation of the Fourteenth Amendment'' (1977)
* ''Death Penalties: The Supreme Court's Obstacle Course'' (1982)
* ''Federalism: The Founders' Design'' (1987)
* ''Selected Writings on the Constitution'' (1987) ith_Philip_Kurland.html" ;"title="Philip_Kurland.html" ;"title="ith Philip Kurland">ith Philip Kurland">Philip_Kurland.html" ;"title="ith Philip Kurland">ith Philip Kurland
* ''The Fourteenth Amendment and the Bill of Rights'' (1989)
See also
*Living Constitution
Notes
{{DEFAULTSORT:Berger, Raoul
1901 births
2000 deaths
20th-century American Jews
American people of Ukrainian-Jewish descent
American legal scholars
American legal writers
Harvard Law School faculty
University of Cincinnati alumni
Northwestern University Pritzker School of Law alumni
UC Berkeley School of Law faculty
Harvard Law School alumni
20th-century American non-fiction writers