Walter Berns, RIP

The noted political philosopher and constitutional scholar Walter Berns died on Saturday at the age of 95. Berns wrote widely and perceptively about many issues, including and especially the First Amendment starting with his 1957 book Freedom, Virtue and the First Amendment. His writing on the religion clauses in his 1976 collection The First Amendment and the Future of American Democracy broadly (and presciently for the time) argued for a relaxed view of government aid to religion under the Establishment Clause and a no-right-of-exemption view of the Free Exercise Clause (he was quite critical of Wisconsin v. Yoder, for example). Indeed, in some ways Berns was an intellectual father of Employment Division v. Smith.

Berns's view that freedom of speech is at the service of cultivating a virtuous citizenry (and thus that cases such as Cohen v. California are wrongly decided) is widely rejected now, though one encounters a vestige of it in Justice Alito's dissents in Snyder v. Phelps and United States v. Stevens. Even those of us who agree with the now-dominant libertarian approach to freedom of speech, however, should appreciate the concerns that motivated Berns:

Morality cannot be legislated, we are told and have reason to believe, but the law can lend support to the moral dispositions of a people. Tocqueville had this in mind when he warned that the religion which had "struck its roots deep into a democracy" must be preserved, watched carefully "as the most precious bequest of aristocratic ages." The principle can be generalized to apply to all those decent habits that are required for self-government. Liberal democracies especially are limited with respect to the means they may properly adopt to generate these habits or moral dispositions, and it is therefore especially important that ours preserve those with which it began. The Supreme Court has not appreciated the role that law must necessarily play in this project. The First Amendment and the Future of American Democracy (1976), p. 228.

On a personal note, when I worked in Washington I lived in Chevy Chase not far from Berns, and I would frequently encounter him on the Metro red line after we had initially met at an AEI event on his book Making Patriots. We would talk about Iowa (he received his undergraduate degree from the University of Iowa), politics, and Supreme Court cases. He was a lively conversationalist and a grand public intellectual. Requiescat in pace.