Walter Berns was a student of Leo Strauss at the University of Chicago in the early 1950s. Like a number of Strauss students of that era—notably, Martin Diamond, Harry Jaffa, and Herbert Storing—his work sought to apply the perspective of classical political philosophy to the study of American government and politics.
Almost all of Berns’ important publications reflect his appreciation of the classical view that “government” and “society” cannot be sharply separated. Both are closely related aspects of a political community’s “way of life.” Much of his writing reflects the classical view that democracy depends on the character of the citizens, so their opinions and beliefs, their personal habits and degree of self-discipline—in a word, their virtues—will matter to the prospects of democratic government.
But Berns also acknowledged—indeed, often emphasized—that early modern thinkers (notably Thomas Hobbes, John Locke, Adam Smith) had tried to place politics on a new foundation and the American Founders largely embraced the new approach, with its promise of reducing religious conflict and enlarging opportunities for the creation of wealth. With his primary focus on constitutional law, Berns emphasized the challenge of limited government in an era that had become impatient with limits and confused about their purposes.
Much of Berns’ early work thus chided a doctrinaire liberalism that elevated selected individual rights—most often, the right to free speech—above every other consideration. In the 1950s and 1960s, he offered forthright defenses for “censorship” of pornography and curbs on offensive and subversive speech. By the 1970s, he turned his criticism against interpretations of the First Amendment that pursued separation of church and state to dogmatic extremes and then sought to exempt religious minorities from general legal obligations, still regarded as binding on all other citizens.
In later decades, Berns sought to defend capital punishment against constitutional claims that the death penalty is inherently “cruel and unusual.” Behind that, Berns saw, was a more general liberal uneasiness with the sort of indignation that demands such ultimate punishment. Berns sought to defend the justifiable anger of citizens supporting capital punishment for the most terrible crimes.
Throughout his career, Berns had offered brief but sharp criticisms of “world government” and of internationalist projects that abandoned that name but implied similar powers above and outside the nation-state. At the beginning of the new century, he published a full-length work, Making Patriots (2001), arguing for the enduring importance of patriotism in modern democracies, while acknowledging the difficulties liberal societies have in cultivating and sustaining that virtue. He offers the poetry and example of Abraham Lincoln as one answer to those difficulties—at least for Americans.
Through all his writings, Berns defended a kind of civic prudence, honoring the aims and concerns of the good citizen in modern democracies, while addressing the real threats and challenges faced by democratic societies, from dangerous tendencies within and hostile powers outside. In his early work, Berns argued against social scientists reducing politics to predictable “behaviors,” divorced from the actual political opinions of actual citizens. Later, he argued with as much vigor against judges and legal scholars who approached constitutional rights with existential commitment, proudly brushing aside common sense limits or reasonable objections. First and last, Walter Berns has sought to defend American constitutional arrangements as reasonable accommodations to the enduring human challenges.
Because many of the same basic themes echo through his many publications, dividing Berns’ work into separate categories is somewhat misleading. But for those with a particular interest in more particular topics, the major works are grouped here under distinct headings, as a rough guide.
—Jeremy A. Rabkin
Social Science and Civic Understanding
“Buck v. Bell: Due Process of Law?” Western Political Quarterly, Vol. 6 (December 1953)
“On Robert Dahl’s Important Questions,” American Political Science Review, Vol. 52 (September 1958)
“The Behavioral Sciences and the Study of Political Things,” American Political Science Review, Vol. 55 (September 1961)
“Voting Studies,” in Herbert J. Storing, ed., Essays on the Scientific Understanding of Politics (1962)
“Law and Behavioral Science,” Law and Contemporary Problems, Vol. 29 (Winter 1963)
“Replies to Schaar and Wolin: III,” American Political Science Review, Vol. 57 (March 1963)
Public Morality and the First Amendment
Freedom, Virtue and the First Amendment (1957, 1965)
“Pornography versus Democracy: A Case for Censorship,” The Public Interest, No. 22 (Winter 1971), reprinted in Berns, In Defense of Liberal Democracy (1984) as “Beyond the (Garbage) Pale”
“Oliver Wendell Holmes, Jr.,” in Morton J. Frisch and Richard G. Stevens, eds., American Political Thought (1971, 1983)
Natural Law and Judicial Authority
“Judicial Review and the Rights and Laws of Nature,” Supreme Court Review (1982), reprinted in Berns, In Defense of Liberal Democracy
“Does the Constitution Secure These Rights?” in Robert A. Goldwin, ed., How Democratic is the Constitution (1984)
“The Constitution as Bill of Rights,” in Robert A. Goldwin and William A. Schambra, eds., How Does the Constitution Secure Rights? (1984)
“Justice as the Securing of Rights,” in Robert A. Goldwin and William A. Schambra, eds., The Constitution, the Courts and the Quest for Justice (1989)
“Natural Law, Natural Rights,” University of Cincinnati Law Review, Vol. 61 (1992)
“The Illegitimacy of Appeals to Natural Law in Constitutional Interpretation,” in Robert George, ed., Natural Law, Liberalism and Morality (1996)
“The Supreme Court as Republican Schoolmaster: Constitutional Interpretation and the Genius of the People,” in Bradford Wilson and Ken Masugi, eds., The Supreme Court and American Constitutionalism (1998)
Capital Punishment and Criminal Justice
“The Morality of Anger,” in Robert M. Baird and Stuart E. Rosenbaum, eds., Philosophy of Punishment (1988)
“Retribution as the Ground for Punishment,” in Fred E. Baumann and Kenneth M. Jensen, eds., Issues in Criminal Justice (1989)
Patriotism and Delusions of World Government
Making Patriots (2001)
“The Case Against World Government,” in Robert A. Goldwin, ed., Readings in World Politics (1962)
“The New Pacifism and World Government,” (1962), “Taking the UN Seriously” (1983), both reprinted in Berns, In Defense of Liberal Democracy (1984)
“The United Nations and Human Rights,” in Andrew Samet, ed., Human Rights Law and the Reagan Administration (1984)
“Patriotism and Multiculturalism,” in Philip Abbott, ed., The Many Faces of Patriotism (2007)
“Lincoln at Two Hundred,” AEI Bradley Lecture, February 9, 2009