Now that you’ve read Part One and Part Two of my discussion of the career of Raoul Berger, it’s time for the part with Nixon in it.
In the late 1960s, impeachment (accusation by the House of Representatives, followed by trial in the Senate) was thought of primarily as a means of getting rid of crooked federal judges, who could not otherwise be removed from office. Still, there had been some dramatic impeachment trials in the distant past, and there were many legal controversies left over from those trials.
One issue was the definition of “high Crimes and Misdemeanors,” the constitutional description of the grounds for impeaching members of the U. S. government. Some advocated a narrow definition, by which only the commission of an indictable crime would justify impeachment.
Professor Raoul Berger, after diving into the source material, decided that the Founders meant the term to mean something besides indictable misconduct. Any serious misconduct or official oppression by an officeholder, Berger argued, was impeachable.
Berger’s discussion went through a good many points, but let’s look at one case Berger studied: The impeachment trial of Supreme Court Justice Samuel Chase in 1805.
Samuel Chase
Conventional historiography portrayed the U. S. Senate’s acquittal of Justice Chase as a defeat for Thomas Jefferson’s Republican (now Democratic) Party and a victory for judicial independence. Had Jefferson’s Republican backers in Congress managed to remove Chase, ran the standard narrative, then other Federalist judges who stood in the way of Republican policies – people like Chief Justice John Marshall – would have been knocked down like ninepins. Only the Federalist minority in the Senate, backed by a courageous group of Republicans who put principle above party, had saved judicial independence by voting Chase Not Guilty. Such was the conventional wisdom.
Berger had a different take. He believed that the Senate should have convicted Chase and removed him from office for numerous acts of judicial oppression. None of these acts were indictable, but they were the type of official misconduct which was impeachable under the Founders’ principles, principles which a partisan minority had violated by letting Chase get away with his behavior.
Chase’s judicial misconduct, as Berger saw it, took place while Chase was presiding at trials of various enemies of the Federalist party (which held office before 1801, becoming a minority party afterward). Berger, just as Congress had in 1805, gave particular attention to the 1800 treason trial of John Fries, who is shown here:
Seriously, though, Fries (proper pronunciation: “freeze”), an auctioneer in eastern Pennsylvania, was one of the leaders of groups of discontented German-American farmers who resisted federal taxes and tax assessments on their houses and land. The 1798 house tax was graduated or, in modern terms, “progressive,” so as to impose higher burdens on wealthy homeowners. But those paranoid Germans – despite their generally moderate income – thought that higher taxes could be in the offing unless the trend was nipped in the bud. Plus, the new taxes were too reminiscent of the oppressive taxes their ancestors had faced in Germany (an early example of Godwin’s Law). Fries, a Revolutionary War veteran, rallied his supporters to drive out some of the tax assessors from his town. Then he and his forces went to demand bail for fellow-resisters who had been arrested nearby, and to insist that these defendants be tried by a local jury rather than in distant Philadelphia (about fifty miles away). When federal officials didn’t meet these demands, Fries freed the prisoners.
Auction Hero? John Fries, auctioneer and tax resister, detained some tax assessors at Enoch Roberts’s Tavern (now the Red Lion Inn) in Quakertown, PA. Fries attempted (somewhat successfully) to stop his drunken followers from beating up the tax men. Justice Chase planned to have Fries hanged in front of the tavern, but a Presidential pardon prevented that from happening.
The federal government put Fries and others on trial for treason – the trials were in Philadelphia. The first prosecution ended in a mistrial, and Chase presided at Fries’ second trial. Before he could hear from the defendant’s lawyers, Chase issued a ruling that Fries’ actions, if proven, constituted treason, and that the defense would not be allowed to argue otherwise to the jury. Fries’ lawyers withdrew from this farce of a trial, despite Chase’s efforts to walk back his behavior. Fries managed his own defense as best he could. Fries was convicted and sentenced to hang, only to be saved in the last minute when President John Adams pardoned Fries and other “rebels.” (This pardon was the final provocation which led Alexander Hamilton – who wanted Fries hanged – to break with Adams.)
Alexander Hamilton
(Incidentally, for what it’s worth, here is Murray Rothbard praising an earlier tax revolt, the Whiskey Rebellion in western Pennsylvania. Interestingly enough, Fries had served in the militia to suppress that revolt.)
Chase had engaged in oppressive behavior toward defendants in other trials, too, including the seditious libel trial of James Callender. Chase pressed, with more than judicial zeal, for Callender’s conviction for the “crime” of publishing a critical pamphlet about President Adams. (Judging from Callender’s “biography” on the Web page of the Federal Judicial Center – an agency of the federal judiciary – it seems that there may still be some hard feelings toward Callender in official circles.)
Basically, Berger portrayed Chase as a classic case of an impeachable official. Presumably, Berger hoped that the next time someone in the federal government committed comparably grave misconduct, they wouldn’t get away with it as Chase had.
(Today, Fries has a section of Pennsylvania Route 663 named after him. Chase has an elementary school in Maryland.)
By around 1971, Berger had completed work on his book, Impeachment: The Constitutional Problems. His publisher, Harvard University Press, didn’t exactly rush the book into print, delaying the publication of this boring treatise until 1973. By that time Berger had resumed his research on executive privilege in preparation for a book on that subject, Executive Privilege: A Constitutional Myth, which came out in 1974.
In the publishing industry, this is known as “good timing.”
Impeachment hit the shelves as President Richard Nixon was in the middle of the Watergate scandal, and the public eagerly bought up copies of this suddenly very relevant book. When Executive Privilege came out, that book was popular too, due to Nixon’s claim that he could withhold information from Congress and the courts. As the title suggests, Berger thought executive privilege was a myth cooked up by modern Presidents in defiance of the Founders’ intentions.
After his impeachment book came out, Berger became a popular Congressional witness for Nixon’s opponents, testifying about the legal standards for impeachment. He also testified about executive privilege, pressing Congress to have the courage to demand the necessary Watergate information from the Nixon administration, in the face of Nixon’s resistance.
.jpg "Like an old-fashioned ladies' locker room, there were no subpoenas allowed")
The executive branch under Nixon (see alt text for punch line)
Berger was a celebrity with a message which was welcome to the media and many parts of the public: Congress had the power to investigate Nixon for abuse of power, and Nixon should be impeached. Berger appeared on a Bill Moyers special on PBS, and on Pacifica Radio.
And there was a flattering profile in the New York Times, which commenced with some really classy ethnic humor: “Raoul Berger thinks of himself as a Dutch housemaid sweeping out dark corners of the Constitution….Every few months he lays his broom aside long enough to testify before a Congressional committee, transforming himself from Dutch housemaid into Dutch uncle.”
I looked for an image of a Dutch maid, but all I found was this painting of a French kitchen maid peeling turnips
Anyway, Berger got a lot of favorable attention from the media and Congressional foes of Nixon, emboldening them in their determination to remove him from office.
(One of Berger’s stances might have been helpful to Nixon – Berger said that the U. S. Supreme Court could review impeachment cases, so that even if the Senate had convicted Nixon, Berger’s view was that Nixon could have taken the matter up to the Supreme Court. The Supreme Court itself would reject this position in 1993, in the case of another Nixon – Walter Nixon, a district judge who was impeached and removed from office. The Senate’s decision was final, said the Court.)
The end came when the U. S. Supreme Court – under Chief Justice Warren Burger, who had been appointed by Nixon…
Warren Burger
…ruled that Nixon’s claim of executive privilege would have to yield to the need of the courts for information. Shortly after that, Nixon resigned under threat of impeachment.
But as Professor Berger noted in the UCLA Law Review, the Court had simply assumed that the President possessed some level of executive privilege which might, in other circumstances (not involving Watergate) justify withholding information from the courts or Congress. Professor Berger complained that the Supreme Court had not even considered his scholarship refuting the idea of executive privilege.
But for the moment, thanks to Watergate and Nixon’s disgrace, broad constitutional claims of executive power and executive privilege were for a time discredited. As Baked Penguin has reminded me, this was the era of a strengthened Freedom of Information Act, allowing individual citizens to go to court to demand information in the custody of the executive branch. Judges, not executive officials, make the final decision about whether citizens get to see the material – though there are numerous grounds the executive can give in court for not releasing the documents (privacy, national security, etc.). (When someone does a full-blown biography of Berger, including looking at his papers at Harvard, his role in FOIA and other developments of the time can be more fully described.)
The seeds of a backlash were already being planted. Just as progressives, faced with Republican Presidents and Democratic Congresses, had become more alarmed about executive power than they had been under Democratic Presidents, so too many conservatives were reversing their former support of Congressional power and coming to see a strong Presidency as a counterbalance to a liberal Congress. In this context, conservative Yale law professor Ralph K. Winter, Jr., wrote a scathing review of Berger’s Executive Privilege. To Winter, Berger was an over-hyped academic whose views on executive privilege were not worthy of serious consideration.
Perhaps Winter grouped Berger among the leftists who (Winter believed) were trying to hamper the Presidency, now that Congressional power had become a progressive cause. To Winter, left-wingers were bitching about the growth of Presidential power because they were looking for scapegoats for the failures of the Great Society.
(Winter was later appointed to the Second Circuit court by Ronald Reagan, and in the 2000’s he served on the Foreign Intelligence Surveillance Court of Review – the FISA appeals court. In the latter position, Winter showed his sympathies with broad executive-branch surveillance. Perhaps privacy is something the President needs but not something the President has to respect when snooping on others?)
Winter’s criticism of Berger was the exception. As Nixon left office in disgrace, most of the intelligentsia and the media praised Berger for his meticulous legal scholarship and his willingness to speak truth to power.
“A toast – to a stout-hearted champion of the Constitution!”
It was time for Berger to turn to another research project. This time, he decided, he would tackle the Fourteenth Amendment.
Works Consulted
Raoul Berger, , Executive Privilege: A Constitutional Myth. Cambridge, MA: Harvard University Press, 1974.
___________, Impeachment: The Constitutional Problems. Cambridge, MA: Harvard University Press, 1973.
___________, “The Incarnation of Executive Privilege,” 22 UCLA L.R. 1 (October 1974), pp. 4-29.
___________, The Intellectual Portrait Series: Profiles in Liberty – Raoul Berger [2000], Online Library of Liberty, http://oll.libertyfund.org/titles/berger-the-intellectual-portrait-series-profiles-in-liberty-raoul-berger (audio recording)
“Dr. Raoul Berger to Deliver Lefkowitz Lecture at Emanu-El,” Texas Jewish Post (Fort Worth, Tex.), Vol. 28, No. 47, Ed. 1 Thursday, November 21, 1974, online at https://texashistory.unt.edu/ark:/67531/metapth754832/m1/5/
Gary L. McDowell, “The True Constitutionalist. Raoul Berger, 1901-2000: His Life and His Contribution to American Law and Politics.” The Times Literary Supplement, no. 5122 (May 25, 2001): 15.
Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution. Philadelphia: University of Pennsylvania Press, 2004.
Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History. Baltimore: The Johns Hopkins University Press, 2005.
Israel Shenker, “Expert on the Constitution Studies Executive Privilege,” New York Times, July 26, 1973, online at http://www.nytimes.com/1973/07/26/archives/expert-on-the-constitutionstudiesexecutive-privilege-became.html
“Raoul Berger, Whose Constitution Writings Helped To Sink Nixon,” Boston Globe, reprinted in Chicago Tribune, September 28, 2000, http://articles.chicagotribune.com/2000-09-28/news/0009280256_1_executive-privilege-writings-constitutional
“Watergate, Politics and the Legal Process,” American Enterprise Institute Round Table, March 13-14, 1974.
Ralph K. Winter, Jr., “Book Review: Executive Privilege: A Constitutional Myth” (1974). Faculty Scholarship Series. Paper 2181, http://digitalcommons.law.yale.edu/fss_papers/2181.
Hamilton isn’t black?
But, he did sing hip hop, right?
… probably couldn’t sing either …
Don’t know about singing, but he’s good at decomposing.
Having somebody in his 60s play a guy in his mid-30s is daring casting
The question of executive privilege is pretty interesting. Since constitutionally the three branches of government are co-equal, one branch of the government does not have the constitutional authority to order another branch to do something, unless specifically granted that power by the constitution. So can the courts order the executive to do something anymore than the executive can order the courts to do something? This very interesting article has raised a lot of curiosity in me, and now I will need to look in to this further.
He has certainly shed an added dimension to this incredibly complex subject.
The courts got let off the leash in the late 19th century and now they effectively rule by fiat. Anyone with a ‘right thinking’ opinion can get standing and then it’s just a matter of time and someone else’s money to get it in front of the 9 emperors who can rule purely by fiat. I see no easy way out of this one short of stacking the deck with originalists and repealing past precedents. I’m sure not holding my breath on that one.
The chaotic in me wants a court decision to go against the Trump presidency and he says to them, “make me”.
It worked for Andrew Jackson.
It is interesting that he hasn’t done just that with the immigration business. What is stopping him from ordering the CBP to deny entry to any foreign national at the border, the courts be damned? They’re not citizens, the government has the power under the Constitution, and the Civil Rights Act of 1965 allows it. What are the courts going to do, order non-citizens to be admitted into the country? How are they going to enforce it when Trump can just fire any employee who does it?
Andrew Jackson makes Trump look like a piker.
Perhaps he does not want to provoke a potential constitutional crisis over a relatively minor matter, because he knows there are plenty of establishment Republicans who would be only too happy to seize the excuse with the pants-shitting Democrats to support impeachment proceedings. because most people are too ignorant to understand the constitution and the law.
I don’t disagree, but Secret Nazi President is not living up to his made-up reputation. Sad!
Didn’t Bill Clinton do that in the Elian Gonzalez case?
The only rule stronger than this is that if you have the wrong opinions, you will be denied standing. It’s amazing how the process can be subverted to serve the rule of man.
Of the three branches, the Courts have the least defined role in the Constitution. A lot of things about the Courts seem to have been “assumed” by the founders, or at least left as a “to be determined later” exercise. For example, the word “subpoena” does not appear in the Constitution, yet no one, practically speaking, has any doubt about the Courts having the power of subpoena (although there are arguments about the extent of this power).
In terms of branches ordering each other around, it is generally accepted that the Congress has this power over the other two branches, with exceptions. The Executive cannot, as a matter of course, order civil servants to violate the law that the Congress has established. Although not without controversy, the Congress can also strip jurisdiction from the Courts over some matters, and of course the operating rule of the Courts is to supposed to be adherence to the law. But, while the Courts can rule on the Constitutionality of laws, they cannot order the legislature around otherwise. The Courts cannot set the parliamentary procedures, nor censure legislators, nor force the passage or withdrawal of certain bills, nor strip legislative immunity, nor dissolve the legislature entirely (for an example of this working differently in other countries, see what just happened in Venezuela). Thus there is no requirement for reciprocity (branch A having the power to order branch B around does not imply branch B has the same power over branch A).
That’s just it, though, “generally accepted” is very different than “authorized by the Constitution”.
Where do you stand on Marbury v. Maryland and the doctrine of “implied powers”? A lot of things aren’t explicitly “authorized by the Constitution” but are, practically speaking, necessary for the government to carry out its defined powers (and a lot of things are not necessary but get allowed anyway because FYTW). And, as I noted, the exact functions and powers of the Courts, especially vis-a-vis the other branches, are not spelled out. You could read the Constitution as implying all sorts of powers or limits to powers on the Courts but few of those implications would be textually supported.
The case is McCulloch v. Maryland (I mixed it up with Marbury v. Madison then only corrected half of it)
Oh, I figured you meant Marbury v. Madison.
Marbury v. Madison held that it is the role of the Judicial system to interpret what the Constitution permits. However, since the three branches are co-equal, and the doctrine of judicial review is not contained in the text of the constitution, it is not exclusively the role of judiciary alone to do so. The idea being that if one branch of the government began to over reach, the other two would exercise their combined power to slap it down. Unfortunately, at this point the three branches generally collude to fuck the public, and the SCOTUS has come to be viewed as the only arbiter of what the constitution allows, without question. As we know this has resulted in absurd expansion of federal power.
My bad, I meant McCulloch v. Maryland.
I think McCulloch v. Maryland stretched the meaning of necessary and proper to allow the federal government to start doing things it was not actually authorized to do.
I mean, look at it this way, the constitution is basically a contract between the government and the people. It says we grant to the government certain very limited powers, in return the government will undertake tasks not easily handled privately, such as coordination and command of the military and other enumerated powers. But a contract that can be said to have “implied” terms, which magically grant one side powers that were never actually spelled out, is pretty fucking worthless. I certainly wouldn’t want the bank to able to interpret my mortgage that way.
“Of the three branches, the Courts have the least defined role in the Constitution.”
Part of the reason for this is that, at the time of the Constitutional Convention, the three branches were seen to be the House, the Senate, & the President, essentially paralleling the English model. At the time there was no accepted idea that the courts would conduct judicial review: in correspondence, Jefferson posited the states take on that role.
That may have been the view of some, and no doubt most viewed the judicial power in more circumspect terms than it came to be exercised, but the structure of the Constitution itself lends credence to legislative (Article I), executive (Article II), and judicial (Article III) being the actual branches. Many mentions are made of “the Congress” without differentiating between the House and the Senate.
How many divisions do the courts have?
I see Eddie maintains his healthy sense of humour.
Read it again. Make note of the ladies locker room rule. We have to figure out an appropriate penance for that one.
*scratches head, considers waterboarding*
Quick observation: Something that has been bothering me for some years now is that ‘precedent’ in the courts, scholary review of past decisions and the research of what founders meant and/or subsequently did holds too much sway. One of the criticisms often leveled at originalists is that the founders were hypocrites or that the nation as a whole did not live up to a certain ideal and then used as a way to discredit those ideals. Perhaps, rather than looking at those in the past that had obvious shortcomings, looking at their words and deeds as a guide we should just stick to the principles. They really aren’t that complicated or difficult.
Perhaps, rather than looking at those in the past that had obvious shortcomings, looking at their words and deeds as a guide we should just stick to the principles. They really aren’t that complicated or difficult.
You’ll never be able to twist the plain meaning of the constitution to serve your selfish desires with that attitude.
“Something that has been bothering me for some years now is that ‘precedent’ in the courts”
I remember some friends pushing the ‘precedent’ issue when Bush was elected because they were fearful of Roe vs. Wade being overturned. Simple response, “so I assume you reject Brown vs. Board of Education?”
They clearly support the Dredd Scott decision. Racists.
Since you’ve brought that up… I’ve actually come to the conclusion that the core argument of the Dredd Scott decision was correct, even if it was applied incorrectly. The actual decision that came down was that someone that legally owns property inside the united states can move to any other part of the united states with that property, even if it is deemed illegal by state law in that area. Currently right now there are many many legally owned products (guns, marijuana, certain motorized vehicles) that are completely legal in one state and will get you prison time in the adjacent state. It wasn’t that the decision itself was wrong, it was that it was applied improperly to human life, which is obviously invalid because it infringes on fundamental rights of the owned person.
You are exactly right, of course. The horror of the Dredd Scott decision was not that the legal principle was incorrect, it was that it confirmed that a certain class of people were considered mere property, with no inherent rights of their own.
I’ve seen Progs try to depict Washington, Madison, and the rest as ignorant redneck plantation owners. In truth most of them were far better educated than the average college grad today – particularly in history and classical civilization. They knew very well what kind of system worked – a Republic with very limited powers granted to the government. And what didn’t work – democracy with unlimited power.
What progs have done very successfully, however, is to get regular Americans to judge the founders through our current ethical and cultural mores and apply that judgement to all the works of those framers. To many, the entire Constitution is negated because Washington, etc owned slaves.
which is absolutely ridiculous. It’s like saying Michael Jackson wasn’t actually a talented artist because he probably was a child molester, or that Martin Luther King Jr. should be thrown out entirely because he plagiarized his doctoral thesis.
They knew very well what kind of system worked – a Republic with very limited powers granted to the government.
…Which came with an expiry date. Which, to their credit, they were partially aware of.
You are absolutely right about them being aware of it. From Thomas Jefferson:
“And what didn’t work – democracy with unlimited power.”
Any system with unlimited power doesnt work be it democracy, monarchy, oligarchy, etc etc.
Limiting the power of the government in any form was the key innovation of the founders.
Someone probably already posted, but it looks like the Amish have struck again:
Amish strike again
You’re trolling, right? Look at the picture… that guy is OBVIOUSLY a fundamentalist Buddhist.
Abraham Lincoln dresser up as a Shriner?
Who’s to say it isn’t a shriner dressed as honest abe?
Holy shit! That whole hospital thing is just a front!
You joke but fundamentalist Buddhists will wreck your shit.
Let’s not jump to any conclusions.
Would have never guessed
… and let me guess, the NRA haven’t yet gotten around to condemning the bombing have they?
$#!% homophobes!
Damn Dutchmen. Buying up all the paintings, bombing subways…
Damn that Justin Amish!
I believe the subject of Johannes Vermeer’s famous Girl with a Pearl Earring was a Dutch maid. He also painted Lady Writing a Letter with her Maid, Mistress and Maid, and The Milkmaid.
Thank you!
Obviously a raging white supremacist. And a lactophile.
That, uh, milk”maid”…was her surname Jenner?
After pouring the milk, did “she” grab the,old pigskin and run 40 yards for a touchdown? Those shoulders!
They liked their women like they liked their coffee: Strong, with milk.
Would
From the WIkipedia page:
A 1907 Dutch cartoon by Jan Rinke, reflecting a controversy over whether the state should purchase the painting rather than let it possibly fall into the hands of some rich American art collector. The government bought the work for the Rijksmuseum.
Good work, Eddie. You should write books. There have to be small-label publishers who focus on this stuff.
And I’m not saying that just because of the shout-out.
You’re not getting any royalties BP. Just let it go.
Hey, if Secret Nazi President doesn’t take off, I need a back-up plan.
It will take off. Just needz moar titties, mmm titties.
That’s a given.
Do be careful what you ask for, though, as Pomp(ey) might break out a few more Schumer cartoons.
“Eating Raoul” was an amusing movie and also featured the long, lean Mary Woronov showing some exemplary titty.