Walter Berns, who died last week at 95, was a scholar who spoke for a more serious and more confident America. He did his best service in the 1960s and ’70s, when America was at its least sober and self-confident.
Aristotle says nature intends the gentleman to be physically imposing but does not always achieve this intention. Nature delivered for Walter Berns. Or anyway (which may have been Aristotle’s point), Berns made the most of nature’s gifts. He was imposing.
Berns taught constitutional law in political science departments—at Cornell in the 1960s, at the University of Toronto in the 1970s, at Georgetown in the 1980s and ’90s. He did not do the sort of Socratic questioning favored by law professors. It would probably have provoked too much whimpering while the questioned students squirmed under his gaze.
Mostly, Berns lectured and students listened. Perhaps they didn’t agree with his various judgments, condemning this decision or that justice, lauding others. But most students came away with the sense that this was a serious subject, because Berns took it seriously—and he was self-evidently a serious man.
In the spring of 1969, students at Cornell “occupied” campus buildings to protest the imposition of penalties on the Afro-American Society for vandalizing university property. Leaders of the group brandished rifles in the air to dramatize their determination. After intense debate, the Cornell faculty endorsed administration proposals to waive the penalties and give in to other demands. Berns, of course, argued for upholding the university’s rules and against giving in to threats of violence. When the university went the other way, he resigned his full professorship. The whole episode still reverberated in the faculty when I came back to teach at Cornell more than a decade later.
The stern public moralist was not the whole man. With his friends—and especially after a few cocktails and a few (or more than a few) cigarettes—he could be charming, witty, an engaging raconteur. Before he entered graduate school at the University of Chicago in the 1950s, he had aspired to be a novelist. He spent time at a writers’ retreat in New Mexico, with the widow of D.H. Lawrence—and wrote of her years later with wistful affection. Among Berns’s very closest friends were Allan Bloom and Werner Dannhauser, fellow students of Leo Strauss and colleagues at Cornell. Bloom and Dannhauser were serious students of political philosophy but not paragons of conventional respectability. Walter Berns stood by them through thick and thin.
When he moved to Washington in the early 1980s, Berns joined a weekly poker game with Irving Kristol, Robert Bork, William Rehnquist, and Antonin Scalia. With occasional additions, they kept up this game for many years. It’s probably safe to assume Berns didn’t lecture the others on constitutional law. Also probably a safe bet—if you like gambling—that Harry Jaffa wouldn’t have been invited to join that group, if he’d been in Washington. He couldn’t have been relied on not to lecture the others.
Jaffa died within hours of Berns last week, also in his mid-90s. They had been fellow students of Strauss, fellow scholars of American thought, broadly similar in their outlook and approach—and had been feuding for decades. So memorial tributes in the past week have repeatedly suggested the parallel with John Adams and Thomas Jefferson, former collaborators, then political opponents, who died on the same day, each mentioning the other in his last hour. But Jefferson and Adams had reconciled in their later years and engaged in extensive correspondence. I don’t think Berns and Jaffa ever did reconcile. Jefferson and Adams wanted, among other things, to protect the political project they had both done so much to launch. Berns was devoted to the political project of Jefferson and Adams—and Lincoln—more than to any contemporary scholarly project.
On Jaffa’s side, the feud (if that’s the right word) seems to have been motivated by Jaffa’s determination to show—in public and in print—that his view of the American Founding was more compelling than the various tributes offered in the bicentennial era (the mid-1970s) by Martin Diamond, Irving Kristol, Robert Bork, and others. Jaffa sought to distinguish himself from those of broadly similar views. On the Berns side, it was simpler, I think: He stood by his friends.
Walter Berns had enlisted in the Navy before Pearl Harbor and served in the Pacific theater until the end of the war. He never wrote about his war experience, and I was never able to coax him to say much about it. I didn’t get much more from others in that generation, not even relatives or close friends of my parents. That generation disdained weepy confessions and boastful self-dramatizing.
I have since learned from Harvey Mansfield—I mean, from his book Manliness—that the most manly men are inherently self-dramatizing. I think the generation of American men who fought the Second World War were too struck by the scale of the effort—and the stakes of the effort—to see the war as a stage for their own personal heroism. But the war left a mark on that generation: Most seem to have taken the lesson that there’s enough honor in doing a hard job when you have to. Through his whole career, Berns was, foremost, a defender of America.
What he learned from Leo Strauss was that the principles of the American Revolution had not seemed at all “self-evident” to earlier thinkers. Before the seventeenth century, the tradition of political philosophy, stretching back to Plato and Aristotle, would scarcely have recognized America’s founding doctrines as political principles. What Berns also saw, however—without prompting from any books or teachers—was that America was a boon to its own people and a great force for good in the world. His academic career was in some way an effort to reconcile these two understandings. He appreciated that liberty is—as the preamble to the Constitution says—“a blessing.” But he also came to appreciate that, even if God-given, freedom is not simply a spontaneous growth: It can’t be expected to continue without reflection, without effort, without commitment to preserve and defend it.
The different phases of his scholarship reflect an underlying purpose, when seen in this light. In the 1950s and ’60s, he criticized the Supreme Court for an approach to free speech that disregarded the rightful claims of civility and decency. In the 1970s and ’80s, he attacked a judicial activism that seemed to have no anchor in the actual Constitution. So in Freedom, Virtue and the First Amendment (1957, 1965) he urged the Court to pay heed to lessons of premodern political thought. In The First Amendment and the Future of American Democracy (1976, 1985) he condemned the Court for transforming constitutional dispute into an open-ended symposium and forgetting that the point of the Constitution was to place some conflicts outside the range of political debate so the rest could be settled by open debate and political compromise.
Berns wrote little about federalism, except to defend Lincoln’s view of the union. He wrote little about property or the abuses of administrative regulation. He had grown up in the Midwest, the child of Republican parents. Still, he was not very engaged by the fierce debates about the New Deal or the menace of “creeping socialism.” His concerns were deeper or wider.
When I saw him at a party last year, where others were bemoaning various failings or transgressions of the Obama presidency, I asked Berns which president he most respected of those in his lifetime. He answered, without hesitation: “Truman.” He was not referring to Truman’s deplorable or forgettable appointments to the Supreme Court (Fred Vinson, Harold Burton, Tom Clark, Sherman Minton). He admired Truman for mobilizing America and Western Europe to contain Soviet communism.
Berns’s most successful books when they appeared were For Capital Punishment (1979, 1991) and Making Patriots (2001). They were only peripherally concerned with constitutional precedents or specific provisions of the Constitution. They were about more basic things. The first argued the claims of civic indignation against evil (Berns wanted the death penalty reserved for the most unforgivable crimes). The latter urged gratitude to the country that protects us against evil. Participants in the original Platonic dialogues would have recognized the issues. In a lecture published by AEI in 2009, Berns celebrated Lincoln’s poetic gift for helping future generations to love America. The ancients would have got the point of that one, too.
Walter Berns revered Lincoln. He cherished the American Constitution. He stood by his friends. He wrote several articles attacking the United Nations and world government. The topic was a bit outside his usual range, but the sentiment was entirely in character. If you claim to embrace everyone, you don’t have real loyalty to anyone or anything in particular.
Berns had too much appreciation for the history of political thought to boil down all questions to a few “principles.” But he was also impatient with the sorts of fine distinctions that beguile so many legal scholars. Berns defended the idea of an impartial court—and was always unsatisfied with the courts we had. He stood by his friends and did his best, always, to defend his country. He was, in an old-fashioned and honorable way, a gentleman.
Fifty years after the American Founding, a young Abraham Lincoln warned that “the silent artillery of time” had “swept over” the “giant oaks” of the revolution, so Americans could no longer rely on the personal, monitory witness of revolutionary heroes to maintain “the temple of liberty.” Lincoln accordingly advised the Young Men’s Lyceum of Springfield that the next generation of Americans must now rely on “the solid quarry of sober reason”—and the “revered name” of George Washington. In other words, “sober reason”—and something more.
Walter Berns was among the last of the “giant oaks” who helped steady the country through the challenges of Cold War and domestic upheaval. He made his contributions to “sober reason” and taught generations of students and readers to appreciate the something more that a flourishing nation requires. He would be the last to say American soil has grown too thin to sustain a new generation of great oaks. Still, Berns appreciated that saplings grow best in the shade of older and higher trees. In his own time and his own way, he set a memorable example of what it is to stand tall.
Jeremy Rabkin is professor of law at George Mason University. He first encountered constitutional law in
Walter Berns’s course at the University of Toronto in 1972.
