(1901 — 2000) was an attorney and professor at Harvard University.
He was born in the Russian Ukraine and migrated to the U.S. when a child. He first pursued studies as a concert violinist at the Institute of Musical Art in New York but switched to a study of law in his early 30s, graduating at age 35 from Northwestern University School of Law. He practiced law in Chicago, and later worked for the Securities and Exchange Commission and as special assistant to the U.S. attorney general and general counsel to the alien property custodian during World War II. Berger began teaching law at the University of California at Berkeley in 1962 and was the Charles Warren Senior Fellow in American Legal History at Harvard University from 1971 to 1976.
His notable work was in the area of constitutional scholarship. Berger has written extensively about the Fourteenth Amendment to the United States Constitution.
His publications include:
- Congress v. The Supreme Court (1969)
- Impeachment: The Constitutional Problems (1972)
- Executive Privilege: A Constitutional Myth
- Government by Judiciary: The Transformation of the Fourteenth Amendment (1975)
- Death Penalties: The Supreme Court's Obstacle Course (1982)
- Federalism: The Founders' Design (1987)
- Selected Writings on the Constitution (1987) [with Philip Kurland]
- The Fourteenth Amendment and the Bill of Rights (1989)
Berger was a popular academic critic of the doctrine of "executive privilege" and was viewed as playing a significant role in undermining President Richard Nixon's constitutional arguments during the impeachment process.
But Berger unleashed a firestorm of controversy within the legal academy with his next book, Government by Judiciary
. In it, Berger demonstrated the Warren Court's expansive interpretation of the Fourteenth Amendment as it alternately distorted and ignored the intentions of the framers of that amendment as disclosed by the historical record. Berger further drew down heat by presenting arguments that the framers of the Fourteenth Amendment did not intend it to forbid segregated schooling. While one or two criticisms of the book took issue with its historical method, the preponderance of the criticism was repetitive moralisms against Berger's argument that many Warren Court decisions were wrongly decided. The book is widely credited as the first work of legal scholarship from an originalist perspective. Some originalists disagree with the conclusions Berger draws from the historical record. Berger posited that the Warren Court expanded the authority of the judiciary without constitutional warrant.
Though Berger identified himself as a political liberal and had gained favor with the left during the Nixon years, after publication of Government by Judiciary
Berger was widely assumed to be a right-wing figure both politically and jurisprudentially, despite Berger's own protestations to the contrary.