WALTER BERNS AND THE CONSTITUTION A Celebration WALTER BERNS “We pay ourselves a very great compliment when we celebrate and honor AND THE Walter Berns. His life and work, defending and honoring the American Republic and its great heroes, is a model and inspiration for all CONSTITUTION who have been blessed to know and to learn from him.” —Leon R. Kass For more than fifty years, Walter Berns has analyzed the American constitu- tional order with insight and profundity. To celebrate his scholarly legacy, A Celebration AEI’s Program on American Citizenship marked Constitution Day 2011— September 17, the day thirty-nine members of the Constitutional Convention signed the draft constitution—with a panel discussion dedicated to Berns and his work on the Constitution. In this volume, Christopher DeMuth (former president, AEI, and distinguished fellow, Hudson Institute), Leon R. Kass (Madden-Jewett Chair, AEI), and Jeremy A. Rabkin (professor, George Mason University School of Law) discuss Berns’s lasting contribution to constitutional studies. Walter Berns is a former resident scholar at the American Enterprise Institute and a professor emeritus at Georgetown University. A renowned scholar of political philosophy and constitutional law, he is the author of numerous books on democracy, patriotism, and the Constitution. WITH REMARKS BY CHRISTOPHER DEMUTH, LEON R. KASS, AND JEREMY A. RABKIN Walter Berns and the Constitution WITH REMARKS BY CHRISTOPHER DEMUTH, LEON R. KASS, AND JEREMY A. RABKIN The AEI Press Publisher for the American Enterprise Institute WASHINGTON, D.C. Walter Berns and the Constitution In mid-September 2011, as part of AEI’s Program on American Citizenship, we celebrated Constitution Day (September 17), the day thirty-nine members of the Constitutional Convention signed the draft constitution. In conjunction with that remembrance, we thought it appropriate to honor our longtime colleague and friend Walter Berns with a panel dedicated to discussing his scholarship on the Constitution and the American regime it supports. For more than fifty years, Walter Berns has analyzed the American constitutional order with insight and profundity. Walter’s many works include nine major publications and scores of articles and lectures. He has written several volumes on the Constitution, specifically Free- dom, Virtue and the First Amendment (1957), The First Amendment and the Future of American Democracy (1985), Taking the Constitution Seri- ously (1987), After the People Vote (1983, 1992, 2004), and Democracy and the Constitution (2006). And, of course, Walter’s legacy extends to the hundreds of students he has taught over the years at Cornell Uni- versity, the University of Toronto, Colgate University, the University of Chicago, Yale University, Georgetown University, and Louisiana State University; these students’ admiration for and attachment to the American political order was a direct consequence of attending Pro- fessor Berns’s courses and lectures. At this year’s event, AEI president Arthur Brooks announced that henceforth the Citizenship Program’s annual Constitution Day celebration will be named in honor of Walter Berns in apprecia- tion of his scholarly legacy in this field and his many years of contributing to the work of the American Enterprise Institute as a resident scholar. 1 2 WALTER BERNS AND THE CONSTITUTION What follows are the formal presentations given by Jeremy A. Rabkin (professor, George Mason University School of Law), Leon R. Kass (Madden-Jewett Chair, AEI), and Christopher DeMuth (for- mer president, AEI, and distinguished fellow, Hudson Institute), as they discussed Walter’s contribution to the study of the Constitu- tion. Following these presentations is a brief set of remarks made by Professor Berns at the conclusion of the event. —GARY J. SCHMITT Program on American Citizenship Jeremy A. Rabkin It is an honor to be speaking here today. But as a student of Walter Berns, it is also somewhat daunting. Nearly forty years ago, I enrolled in a graduate seminar with Professor Berns. He was not the sort of professor who tried to ingratiate himself with students. He did not say, “Call me Walter.” Even a few years later, when I was already an assistant professor, Professor Berns did not hesitate to clarify my place. We were both at the same social gathering. As the conversation turned to a par- ticular topic, I piped up, “I have a story about that.” Berns cut me off: “You are too young to be telling stories.” I hope I am old enough now to tell some stories. But, just in case, I will try to stick to the published record here. Walter Berns waited some fifty years to tell (or, anyway, to pub- lish) stories about his early encounters with Frieda Lawrence in Taos. He confides in a recent essay on the subject that, as a young man, he hoped to become a novelist and had no idea of becoming a political scientist.1 Anyone who browses through his collected essays can see that he retained at least a knack for sketching a word picture with telling—or devastating—details. In the 1970s, Berns published an article in the National Review, sharing some unflattering stories about Father Daniel Berrigan, S.J.2 The main story concerns his debate with an unnamed professor of government at Cornell, where Berrigan had been the Catholic chap- lain in the late 1960s and Berns at the time was a professor of gov- ernment at Cornell. When I reread this piece recently, I concluded that it must have shamed Father Berrigan into withdrawing alto- gether from public life. A quick check on Wikipedia informed me 3 4 WALTER BERNS AND THE CONSTITUTION that he has, over the past decades, remained active in antiwar protest—but in Staten Island, which is probably not a Division I contender in the antiwar protest leagues. Alas, the Berns treatment did not have quite the same impact on the international human rights community as we may hope that it had on the Jesuit order. Still, no one who reads Berns’s 1983 essay on the UN Human Rights Commission can think of the Universal Declaration of Human Rights without recalling this line—and wincing: “One does not have to be an historian to imagine the response of mankind (to whose opinions they were paying ‘decent respect’), if Jefferson and his colleagues of 1776 had written: that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and a paid vacation.”3 But I don’t mean to suggest that the contributions of Walter Berns to constitutional studies were primarily those of a literary take- down artist. Actually, what most strikes me now, browsing through his occasional essays of four decades, collected in two different vol- umes, is how “high toned” they are. Contributions to op-ed pages or opinion magazines tend to lose their punch with the passing of years. The original targets of their spleen or ridicule come to be justly forgotten. An author still railing against them (in a later col- lection) will seem to be throwing darts against the wind. But almost all of Walter Berns’s occasional pieces remain engaging and often quite charming, even decades later. He did not waste his words, even in short essays, on mere point scoring. (But I can attest, from conversations over the years, that his private stance was not one of serene detachment.) Sometimes, even in a short piece or brief passage, Berns could elicit a palm slap to the forehead: “Why didn’t I think of that?”— followed by the consoling, “Why didn’t ANYONE ELSE think of that?” In a short 2004 piece, Berns addressed the question, “Why a vice president?”4—a question that, right up to this moment, contin- ues to trouble observers of Joseph Biden. Berns explains that the Framers gave two votes to each elector in the Electoral College on the assumption that most electors would vote for their home state candi- date, so with two votes, the odds improved that someone would get JEREMY A. RABKIN 5 a majority—and the runner-up could then be recognized as vice presi- dent. The rationale seems obvious once it’s explained. But you won’t find the explanation in Madison’s Notes of the Debates at the Philadel- phia Convention or in the pages of The Federalist. You won’t find it in any of the most recent full-length histories of the Founding, either. To take another example, Berns’s 1987 book, Taking the Constitu- tion Seriously, points out that during the American Revolution, the Continental Congress invited Quebec to join the other rebellious colonies—despite misgivings about joining hands with a French- speaking and predominantly Catholic province. What they did not do was invite any islands of the West Indies to join, even though Jamaica alone had twice the population of Quebec and was English- speaking and Protestant and generated much more revenue for Britain. But, as Berns points out, to embrace such places at the time would have meant embracing more slave territories.5 Two genera- tions later, that was an attractive prospect for political advocates in southern states (who cast covetous eyes, for example, on Cuba). But at the time of the American Revolution, there seems to have been a clear understanding that more entanglement with slavery was more trouble for the new republic. As a trained social scientist, I gathered some data for this talk. I checked the Lexis inventory of law review articles for citations to Walter Berns. Among the most frequently cited Berns works, in fact, are his articles on early debates about the First Amendment, demon- strating that even Jefferson and Madison seem to have conditioned their defenses of freedom with one eye on what would avert chal- lenges to slavery.