Walter Berns, a leading figure in the study of constitutional law for nearly half a century, enjoyed an advantage over most other scholars in this field: He never attended law school. Unburdened by this professional training, Berns brought to his subject the fresh perspective of an outsider who had studied political philosophy at the University of Chicago, earning his doctorate in 1953. This theoretical background helped prepare Berns to see not only differently but further than his more legalistic colleagues.
It was not that Berns did not know his case law backwards and forwards—he could summon Supreme Court holdings from the deep, and, yes, they would come. Nor was it that he did not demand, at least from his graduate students, the painful mastery of all relevant legal doctrines and prong tests. Yet important as he knew such subject matter to be for the teaching of constitutional law, Berns always viewed the field itself in its connection to a larger object of concern: maintaining America’s political system and sustaining its experiment in modern liberal democratic government. With this in mind, Berns once ventured the heretical counsel to law schools that they should begin their courses on constitutional law by studying the Constitution rather than the Fourteenth Amendment.
Walter Berns’s first book, Freedom, Virtue and the First Amendment, was published in 1957. For the undergraduates of the 1960s who encountered this work—I was one—its title was sufficient by itself to provoke and offend. No problem, of course, with “freedom”; it meant throwing off all bourgeois shackles and doing what we wanted. And no problem either with “the First Amendment”; whatever it may have meant originally, we knew it was now being interpreted by the Supreme Court to offer a license for virtually every form of expression. But “virtue”? What was that strange intruder doing in our midst?
In fact, the three concepts in Berns’s title fix the matrix of much of his subsequent work. Freedom, though it had many meanings, Berns allowed for purposes of analysis to refer to full and unfettered rights. It was the supreme claim deriving from modern political philosophy. Virtue, which had even more meanings, could be simplified to refer to sound public mores, enough to support a decent republican government. Virtue had been the concern of classical political philosophy. And then there was law, the instrument that was to help find the proper balance for our times between the other two principles. For Berns, the study of these issues involved nothing less than wrestling with the problem of reconciling a key element in the competing views of the ancients and the moderns. It was no wonder that an undergraduate course in constitutional law, insofar as it raised questions of this kind, might become the centerpiece of a liberal arts education, a position it still holds in a few of our colleges and universities.
Today it is a commonplace in social inquiry to acknowledge that, for our society to remain in even a minimum condition of health, freedom must be coupled with responsibility (or what Berns meant in part by virtue). But what role does law in general and constitutional law in particular play in addressing this issue? Berns insisted, contrary to what so many others preached, that the Constitution, correctly understood, allowed for—and that the political thought undergirding it even helped to guide—the striking of a workable balance between rights and virtue. Berns accordingly supported certain laws that sought to ban pornography and public profanity and indecency, and that indirectly worked to promote religious beliefs. The law, he wrote, “can lend support to the moral dispositions of a people . . . [and] to those decent habits that are required for self-government.” The problem, he often argued, was that the Supreme Court—he was writing in the 1960s and ’70s—had come to view key parts of the Constitution, in particular the First Amendment, as being statements only of freedom.
To the students of the 1960s, Walter Berns’s willingness to write about virtue could make him seem severe. Sworn as so many of us were to that seminal principle of letting it all hang out, what were we to think of a person who could say, as he did later, that “good manners and forms are barriers to the objects of our desires, and there is much to be said for barriers of that sort”? And so it was that when Walter Berns was selected as the outside examiner for the senior exams at Kenyon College—even though my views had already, as they say today, evolved—I met him in a state of fear and trembling. And he did not disappoint. Here was a teacher who did not coddle and who examined to the limits—and beyond. I attended Cornell a year later, and while slightly more confident, kept a prudent trepidation.