By the time I was a student of his at Georgetown in the early 1990s, the constitutional scholar Walter Berns—who died this January—was an academic legend, and his classes were usually overbooked, with some non-students sitting in simply to listen. At Georgetown he taught a cycle of three courses on the American Revolution, Tocqueville, and Lincoln. At the time I did not know that Berns was a student of Leo Strauss and had written important works on censorship and the death penalty (he was for them) and world government (against).
I was still trying to find out what it might mean to be a “conservative,” to say nothing of what variety of conservative I should be. What I did know was that Berns was everything a teacher should be: engaging, opinionated but respectful of others, and a master of the material, which he obviously loved. Indeed, sometimes I think the best possible legacy of the Straussians a century hence will be that image of what a teacher should be.
His explication of the principles of the American Founding left a lasting impression on me, and his teaching provided a perfect counterpoint to my reading of Russell Kirk—in some ways, though not all, a thinker very different from Berns. I recall even now his lectures on why the Confederacy, rather than the Union, better embodied the dark side of progressive “science”—the South being explicitly founded on so-called racial science while the North stuck to Lockean natural rights and the British political tradition—and how Tocquevillian principles explained why there would always be more female models than male ones. As a sophomore I found him terrifying, and not much less so after three courses than when I took the first one.
Among the most vexing problems Berns addressed over his long career was that of religion in the American polity. An Episcopalian of the old school, Berns thought religion important but something that, in James Madison-like fashion, must be kept under control for fear of causing “faction.” In 1963, writing in National Review on “School Prayer and Religious Warfare,” Berns chided the Supreme Court for delving into religious controversy when it did not have to do so. The court had the year before invalidated a nonsectarian prayer in New York City public schools. Berns suggested that the court need not have decided the case, as sometimes it is more judicially appropriate not to act than it is to act, especially where questions that may cause social unrest are concerned. Here, he argued, the court could have taken refuge in the legal doctrine of “standing” to deny those bringing the case the ability to press their claim.
Berns thought that New York prayer decision was wrong as a matter not of jurisprudence but of simple prudence. The Constitution, he wrote, does not provide a definitive answer to whether such prayer should be permitted. Nor does history: here Berns referred to the Fourteenth Amendment, which imposed the strictures of the First Amendment on the states—which had in turn, from the time of the Revolution, a variety of different arrangements between church and government that provided more or less public support to religious belief. Those who would try to deny “incorporation” of the First Amendment’s rights as against the states “would need to ponder the desirability in this day of the alternative: states would still be free to disenfranchise men and women” because of their religious beliefs—a result, Berns implies, that should not be countenanced.
But if text or history provide no opposition to the court, then mindfulness of judicial self-preservation perhaps should, for if the court continues to involve itself in religious-liberty issues in this way the challenges to laws of all sorts for their supposed unconstitutionality because of their religious nature will only increase. “Justice Black and his zealous colleagues are going to have to call a halt to their logic,” Berns warned, “or the Congress and the people shall do it for them.” A short prayer was a small price to pay for “the general freedom of opinion that prevails in this country, or for the benefits of American life generally.”
Half of what Berns predicted came to pass. Those challenges continued to come, and the court continued to entertain them, allowing, in Berns’s view, the court’s logic and sense of its own superiority to interfere with the public peace. With some exceptions, these decisions tended to strip the public square of any connotation of religion. But unlike what Berns predicted, neither Congress nor the people seemed to care much, and no one called a “halt” to it.
His concern over the court’s involvement in cases touching on religious conviction had an unforeseen personal effect. In 1997, he resigned from the board of First Things over a symposium on the possibility of judicial tyranny. Some of the contributors to the symposium questioned whether because of cases like Roe v. Wade and Planned Parenthood v. Casey, the United States could be considered still to have a legitimate government of, by, and for the people rather than what Russell Kirk elsewhere called “archonocracy,” or rule by judges. Berns, a World War II veteran, would have none of it. He wrote to the editors, “You do not speak for me… when you say that the government of the United State is morally illegitimate and come close to advocating not only civil disobedience but armed revolution.”
Berns knew from revolution: at Cornell in 1969 he was one of the few faculty who refused to bow to radical student demands, which cost him his post. But his reaction to the symposium is informative. The Supreme Court’s extension of its religious “logic” had created too many holes in the fabric of the polity. While other religious conservatives, myself included, rejoiced in the resistance to the “naked public square,” Berns lamented that it also meant the disintegration of a nation founded explicitly on the laws of Nature and Nature’s God, with religious freedom coming second to citizenship, an argument he elaborated on in his masterful 2001 book Making Patriots.
Although during the course of my college career I learned more about what the “Straussians” supposedly stood for, Berns never seemed a doctrinaire follower of that school. He was obviously an American deeply in love with America, and not—or not only—the abstract America of universal principles that seemingly enamored so many of his fellow Straussians. He believed that the principles of the Declaration of Independence stood for a universal set of rights but also that in America the devotion to those principles is united with a love of country. The closing pages of Making Patriots—in which Berns rejects the idea that the Founders who were willing to sacrifice their lives, fortunes, and sacred honor did so for a mere “opinion” and makes the case that symbols like the flag and our national monuments embody not only principles but a common culture—remain worth reading for anyone who wishes to understand the combination of ideal and history that has formed the country. If he did not predict that a secularized Lockeanism could itself disrupt the constitutional balance that relied on a certain Christian understanding of self-government, he nevertheless defended that balance against the enemies of his time. May he rest in peace.
Gerald J. Russello, editor of the University Bookman, is working on a book about conservatism.