“Gov’t can rule only by laws, not by decrees.” “The Last paragraph Fed 10: (first object of gov’t: protect the unequal faculties of acquiring property.) [arrow to next sentence:] “To secure equal rights is to secure rights of unequally endowed human beings. To allow pursuit of happiness as the individual defines it.” “Berns says Congress may indeed remove S. Court’s jurisdiction from cases.” “‘One thing is clear: the Founders did not anticipate that the Supreme Court would have anything like the role it plays today’ – Berns.” “Berns says only substantive clause of 14th is privileges and immunities (also see Article 4).”
These are a few of my scribbled notes from the fall of 1986, from a class at Georgetown on the essentials of American constitutionalism, taught by the great scholar Walter Berns, who died this past weekend at age 95. I had graduated in May of that year with a degree in government and theology (double major), but somehow had missed the chance to take any courses from Berns. So, since I remained in D.C. to work (as a Reagan appointee to the Veterans’ Administration), I contacted him and asked if I could audit his class for free — and he agreed, as long as I didn’t tell anybody in Georgetown’s administration. Of course, as almost every student Berns ever taught will tell you, the class was superb. Berns’s knowledge was vast and deep, and his love for the American experiment was inspirational. James Madison, in particular, leapt from Berns’s lectures in full intellectual color, a still-living paragon of wisdom, decency, practicality, and principle.
I was particularly moved by Berns’s exposition of how the Founders regarded the interplay between liberty and equality, with the latter being defined, for American purposes, in terms of the former. (In other words, the equality we enjoy is quite specifically, and in almost all respects no more than, an equality of liberty.)
After the last class, I approached Berns and said that since I would not be taking the final exam (since, of course, I wasn’t officially in his class to start with), I wondered if there were any project he was working on, or wanted to explore, but which he did not have time to thoroughly research and on which he might therefore welcome some research assistance — for free or, depending on how one looked at it, as my payment for him having allowed me to audit his class. He invited me to meet with him at his AEI office and, while it was certainly not a long meeting, maybe 20–30 minutes or so, we decided that a great area of mutual interest would involve re-deciding Brown v. Board of Education to reach the same practical result (outlawing state-sponsored school segregation), but on the basis of a liberty argument based on the “privileges and/or immunities” clauses rather than on the equality argument through the strained application of “due process,” especially as further confused by Earl Warren’s mumbo-jumbo citing supposed developments in psychological understanding, etc., etc. I’m not sure if Berns was just humoring me (he was a serious man, who did not strike me as being wont to humor somebody), but I left his office with grandiose visions of literally writing an entirely new, mock Brown v. Board decision and publishing it somewhere.
As I remember it, I spent maybe three hours at a library one day (if that) on the task. What notes I took from that session seem to be lost. But shortly after I returned to D.C. from spending Christmas at home in New Orleans, I was asked to return to Louisiana to work on Representative Bob Livingston’s 1987 campaign for governor. The research project died in its cradle — and, 20 years later, which was the next time I saw Berns, who was giving one of his magnificent presentations at an AEI event, he remembered neither the project nor me. But he did say something like: “Privileges and immunities: Yes, I always lamented the Court’s treatment of those clauses.”
The second-last note from that 1986 class, citing something Berns said from the lectern, was this: “a prejudiced attachment to the Const. is good.“
Walter Berns provided generations of students a wonderfully prejudiced attachment to, and reverence for, the Constitution of the United States of America. It was a great life’s work. May we be ever grateful for Berns, for his work, and for the system of ordered liberty he expounded. And may he rest in God’s good peace and joy.