More than two decades ago Raoul Berger published his now classic treatise on executive Privilege.(1) Berger's thesis was that the doctrine of executive privilege--especially as it pertained to the withholding of information from Congress--is an unfounded tenet of presidential power. Although supporters of the doctrine have steadfastly adhered to its constitutionality, Berger demonstrated that such claims were not to be found in the Constitution, the writings of the founders, state constitutions, or the, Articles of Confederation, among sources examined.
Some may suggest that Berger was a strict constructionist with a philosophical axe to grind. Although all research is influenced by personal bias, Berger stated in his preface that it was his intent to "unearth and be faithful to the facts" and to leave "no argument in favor of executive privilege unexamined." Each of us, of course, is free to examine whether Berger accomplished his aims, but it is apparent that Executive Privilege was meticulously researched and cogent.
The book reviews were generally laudatory. Notable were the comments of Philip Kurland:
Once again it should be said that Berger has afforded us a volume of
constitutional history that represents historical scholarship at its finest.
One need not agree with the inferences that he has drawn from his data to
recognize that whatever decisions are to be reached must be based on the
data. Once again we are in Berger's debt and none, least of all 1, should
suggest that the accolades he has received for his recent work are anything
but well deserved. All of us should look forward to his further researches,
for in any age when historians, like the press, tend to pick and choose only
the evidence that supports their theses, Berger demonstrates a devotion to
completeness and objectivity that should inspire others to follow his
Not all reviewers were as enamored with Executive Privilege. In a scathing critique, Louis Fisher(3) sought to undermine Berger's interpretations and conclusions and impugned Berger's abilities as a scholar in general. Fisher urged "political scientists to proceed with caution before adopting Berger as an authoritative and reliable source."(4) In a lengthy response, Berger(5) ably refuted Fisher's criticisms and hopefully laid to rest any doubts that had been created about his abilities as a constitutional scholar.
Another challenge to Berger's work has recently emerged. In his book, Mark Rozell(6)...