A Polemical Scholar

...A Polemical Scholar Executive Privilege: A Constitutional Myth By Raoul Berger Harvard 430 pp $14 95 Reviewed by Richard E. Morgan Associate Professor of Government, Bowdoin College Conceived as a scholarly treatise, this book received considerable popular attention during Richard Nixon's battle to withhold his Presidential tapes, and I fear it is in for more Besides winning glowing notices in the press, Raoul Berger became a much sought-after guest on the late-night and early-morning TV talk shows His media appeal rested partly on luck and partly on his peculiar style The luck was in his timely choice of topics The present work was preceded by an equally weighty 1973 tome on the constitutional provision for impeachment When Watergate politics began taking on substantial constitutional dimensions (what were impeachable offenses and what were the limits ot Executive privilege), there could not have been an expert Johnny quicker on the spot The attractiveness of his style inhered in the clarity and tone ot certainty, even finality, with which he announced his conclusions None ot the usual academic qualifications, shilly-shallying or invocations ot complexity for Berger He offered answers that could be expressed in everyday language in five-minute time slots That the particular answers he gave (eg...

...Berger adopts a terribly cramped view of the sources of American constitutional law and of the processes by which it grows and changes over time Although the framers' thoughts and the history they were likely to have read are always relevant considerations, these are rarely dispositive m deciding constitutional questions In Berger's jurisprudence, however, not only does it seem that the framers had coherent and discoverable expectations on all or most important issues, but it is illegitimate tor the judges and elected leaders of succeeding generations to alter or expand these expectations As Ralph K Winter noted last July in the Yale Law Journal, "Berger's treatment of the Constitution suggests that it resembles more a poorly drafted debenture bond than an enduring charter of government ' Have we all been quite wrong in celebrating a living Constitution, continually adjusted and modified and developed to meet the requirements of changing historical circumstances...

...Can a modern Chief Executive function without some capacity to keep secrets...

...I suspect I know Berger's answers to such questions—and perhaps he is right—but they appear in the text only by implication Page after page the conviction grows in the reader that Berger's considerable technical skills and energies are directed by an impulse that is essentially polemical rather than scholarly It may be hoped (if not, alas, expected) that greater circumspection will obtain in the future when journalistic entrepreneurs shop tor constitutional "authorities...

...Executive privilege to withhold material demanded by another branch is a "constitutional myth") were momentarily fashionable probably added to his appeal, but I suspect the assurance ot rectitude he projected was the basic factor In reality, Executive Pmilege is a very problematical book To begin with, it is scholarly only in the limited sense that a great deal of research went into it The volume is very loosely organized and is analytically flawed in several respects More important...

...Does Berger really favor a return to the weak Presidents of the "Whig theory," and the Congressional government Woodrow Wilson deplored almost a century ago...

...Clearly not What the Supreme Court, Congress and Presidents have said about Executive privilege over the years (whether or not they were correctly reading the framers or even trying to) cannot be ignored in deciding the concept's meaning today (It should be noted that despite Raou) Berger's standard of what makes constitutional law, Chief Justice Warren E Burger insured the nonmythical status of Executive privilege in his opinion for a unanimous eight-man Supreme Court in V S v Nixon While rejecting the particular invocation of the doctrine m that case, he took great care to make clear there are circumstances in which the President may properly withhold information from the other branches ) Just as seriously, Berger pushes repeatedly on an open door There is no question that both English and American constitutional histories validate the right and responsibility ot legislatures to inquire into Executive conduct Yet this does not necessarily carry with it the right to have nothing withheld As American government textbooks commonly observe, part of the genius of our constitutional arrangements is that no branch is left altogether vulnerable to another branch Richard Neustadt, for example, speaks helpfully of a national government of "separate institutions sharing powers " Accordingly, there is no reason why a doctrine of qualified Executive privilege cannot exist in tension with a Congressional duty to inquire The significant issue is thus not whether one or the other is absolute, but what are the limits of Executive privilege and the scope ot the duty to inquire'' Finally, Berger declines to argue the public-policy merits of the constitutional outcome he finds historically and legally correct Even if the record of the past were as unambiguously opposed to Executive privilege as he suggests, one could still reply, "So what, let's invent it" Indeed, should Congress be given everything it asks tor every time it asks, when this is tantamount to making the information public...