Raoul Berger

[Clanton, Brad]

Well said, Professor Levinson, and I echo your sentiments.  In the very
first law review article I published after graduation from law school,
"Standing and the English Prerogative Writs:  The Original Understanding,"
63 Brooklyn Law Rev. 1001 (1997), I undertook to demonstrate that Professor
Berger and Professor Louis Jaffe had both erred in their conclusions that
the eighteenth century practice in the English prerogative writs
(prohibition, certiorari, quo warranto, and mandamus) supported the notion
that "standingless" suits were commonplace during that period.  I thought I
had made a pretty good case for my position (Justice Scalia had reviewed the
article and thought well of it), but I was quite surprised when I received a
letter from Professor Berger conceding that he had apparently erred in his
conclusions.  I must admit that I took no great pleasure in his concession,
as I had the utmost respect for him and for his tireless advocacy of
interpreting the constitution according to the original understanding of its
provisions.  And I'll be the first to admit that it's possible MY
conclusions are incorrect.  Perhaps some young wiseacre fresh out of law
school will come along one day and show how wrong I was.  And I hope that I
am able to exhibit as much integrity and dedication to a proper
understanding of our constitution as Professor Berger.  R.I.P.

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)


-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
Sent: Friday, September 29, 2000 4:39 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Raoul Berger


I was one of many people who was the subject of one of Berger's
"responses."  I take the liberty of quoting the beginning of my piece,
"Raoul Berger Please for Judicial Activism:  A Comment," 74 Texas Law
Review 695 (1996)(a title, of course, guaranteed to elicit the most
heartfelt of protests against my argument that "activism" includes the
willingness to uproot well-established precedent in the name of returning
to purported original intent):

"Whether or not one agrees with [Berger's] general intentionalist approach
or his specific conclusions based on that approach, one can only admire his
passionate devotion to the ideal of constitutionalism and his zeal to
correct those whose understandings he views as deficient.  Although he can
be quite sharp in print to those with whom he disagrees, this is
unaccompanied, so far as I can tell, by the slightest trace of personal
animus.

        Not only has Berger been unfailingly courteous to me in any personal
encounters, but he also melts my fatherly heart by asking, whenever we
meet, whether my older daughter retains her interest in music--his other
great passion in life.  He usually goes on to press upon me the
desirability of listening to great recordings of the musicial classics.