Editor's Note: When he died last September at age 99, Rauol Berger was famous as a legal scholar, whose books had illuminated American constitutionalism and provided powerful historical arguments against judicial activism. In this interview, he reflects on his remarkable triple life as a musician, lawyer, and scholar.
Berger emigrated to the United States from Russia while a boy. An expert violinist in his twenties, he left the Cincinnati Symphony Orchestra in 1932 to return to school. He became a lawyer, serving as special assistant to the U.S. Attorney General during World War II, and then practicing law in Washington D.C., for 16 years. In the 1960s he became Regents Professor of Law at the University of California at Berkley and eventually a senior research fellow at the Harvard University Law School. Berger published his first book at age 68, and went on to publish six more, includingImpeachment, Executive Privilege, and Government by Judiciary. He was interviewed on his birthday in January 1995.
How did you decide to embark on a second career?
From the time that I was a little boy, I had a passion for the sound of a violin. I love classical music. And I poured myself into it with a fanatical devotion. I studied with great masters in New York and Berlin. By the time I was 26, I was the second concertmaster of the Cincinnati Orchestra. My devotion to music resembled an addiction, comparable to an addiction to drugs. But I realized that it was impossible for one who doesn't hit the heart of the target to make a career as a virtuoso, as a soloist. That had been my ambition and training.
So what drove me out of music was not a desire to explore some other avenue, but because I found playing in the orchestra frustrating; I was over-qualified for the job. Mind you, I was making more money in music than I would make at law for quite a few years. But what I was doing was numbing, corrosive. Another thing: one goes into any art for self-expression. The only livelihood open to me was to play in an orchestra. I did not want to teach to spend my life straightening crippled bow arms. Even if you are at the very top in an orchestra, it is the conductor who calls the tune and you are expressing what he wants to express. That is inescapable.
So, at age 26, I realized I've got to get out of here. I didn't know where I was to go. But I really felt like a bear who had been caught in a trap. I amputated that leg. Escape cost me seven years. First, I had to go to college, for without a degree I could go nowhere.
I should add that I grew up in a generation in which business had been discredited. Upton Sinclair had written an exposé of the meatpacking industry, The Jungle; Sinclair Lewis had written Babbitt. So I ruled out business; my reasons for excluding medicine would make a long albeit interesting story. There remained the law. I had not the slightest inkling what the law was about, whether I would like it, whether I could [do well] at it. Toward the end of August 1932, I wandered into the law school of Northwestern University and called on the dean. It so happened that I had played a number of recitals in Austin, Texas, where he had taught at the University of Texas and been immersed in writing a book that made him a prominent figure in the law. He did not attend my concerts, but his wife did, and spoke to him about a promising young violinist who was destined to make his way. So he recalled that and tried to dissuade me from entering law; it would require learning a new language, and take years before I could achieve the competence I already had in music. But I told him that I had burned all my bridges and might as well give the law a try. After 10 days I said to myself, "Raoul, this could be a very engrossing way of life." Unlike an accountant, for example, who can bring his skills to bear in corporate law, I didn't have a single transferable capacity. But I had leaned self-discipline, to work hard and steadily. I had also learned that every detail counts. And I had found that technical mastery was essential if I was not to be a slave to the instrument. These [proved] to be useful habits to bring to the study of law….
I didn't know whether I had any other talents, still less whether I would have aptitude for the law. My motive was simply to get out of what my teacher, Franz Kneisel, regarded as a "musical warehouse," to make a modest living. It was by sheer accident that I found the law engrossing. It continues to be engrossing into my deep old age. And there is my story.
You continued to play the violin though, didn't you, until you were 60?
The violin helped me to pay my way through college and law school, but I abandoned music as a livelihood from the time I graduated from law school. But I practiced every morning for one hour before setting out to the office. Playing calls for a very high degree of muscular coordination, and to keep in shape, one must practice "setting-up" exercises every day. Otherwise you cannot respond to the demands great music makes upon you. My reward was to play quartets every Saturday night with top-flight professionals. This I did for years. I may add that some of the greatest music has been confided to the string quartet, and for me nothing surpasses a classical "jam session."
When I reached 60, I realized that time had taken its toll; whereas I once had had real command of the instrument I found myself slipping. This is not peculiar to violinists. I recall that a champion golfer, Walter Jones, I believe, gave up golfing. When asked why, he said it is humiliating to go around in 80 strokes after you have done it in 62. That is precisely my feeling. After you have played supremely well, or thought you did, it was very painful to fall short or what your ear demands. So when I was 60—at which time I had a beautiful Stradivarius paid for by my labors at law—I put the violin away, and in the 34 years since, I haven't touched a fiddle. In the words of Will in "Oklahoma," it had to "all or nuthin'."
Justice Holmes wrote that the law is the domain of the thinker, not the poet. I was passionately attached to the violin, and to this day I consider that was where my real talent was; and from time to time I thought that I was very close to being a real top-notcher. I don't feel that way about my place in the law. There are hundreds of fellows in the law who are as well or better equipped than I am. To give you a homely analogy, I am like the guy who fell head over heels in love with a captivating, ravishing woman who jilted him. So I turned around and married a quiet Hausfrau—the law—with whom I have lived very contently. I have never duplicated in the law my great moments in music. To this day she remains my beloved; every day I sit by myself and listen to recordings by some of my idols.
Why do you write?
It's a commonplace that you haven't really grasped an idea until you have written it down and looked at it, at which time you may revise it ten, twenty times before you conclude that it expressed what you have been thinking. It's fun to think, and writing is a great art. As I indicated, it is one of the great disappointments of my life that I do not bring the artistry and nuance to writing that I believe brought me the violin. I think I have learned to write with lucidity and clarity, but believe that I was a much finer artist as a violinist than I ever became as a lawyer. Much to my disappointment. But I have learned to live with that, too. Understand, I still get a lost of pleasure out of wrestling with a complex problem, breaking it up, assembling all the pieces. And where some people complain about the slavery to their desks, I enjoy nothing so much as sitting at my desk and wrestling with something until I get into a form that I feel, well, that's satisfactory, that will pass.
Is that why you have never "retired"? It's the pleasure that you get?
I wouldn't know what to do with myself. Somebody once asked Bertrand Russell, who was a truly great man, "Why do you work so hard?" He said, "To escape from boredom." I worked feverishly when I was a violinist, and I worked very hard at the law because, well, to begin with, I came into the law about 10 or 12 years behind the other fellows. So I had a lot to make up and I was very apprehensive that what I had lost I would never make up, and I will confess to you that I never did make it up, really. Striving for excellence is a great spur. I enjoy sitting down at my desk and working every day. And I am not alone in that. I am sure there are many people who have done work that interests them, who enjoy continuing to work as long as they are able physically to do it.
If I will be known for anything, it will be for the work I did after 65. Let me sound a chastening note. One of my idols was the great pianist Vladimir Horowitz. He was a paragon. For more than 80 years I have been listening to music. I love [Pablo] Casals, [Arturo] Toscanini. But no artist has meant as much to me as Horowitz. A few years ago he passed away. The other day I read in the Sunday New York Times a review of a recent recording of a sublime piano sonata by Schubert, comparing a few artists who couldn't hold a candle to Horowitz, but not mentioning Horowitz. My God! The greatest performance of all, that of Horowitz, wasn't even mentioned! Here was a true giant forgotten after a few years, and that is what will happen to most of us. I look at my work very coolly; some of it has been useful and may prove of worth down the line. When something piqued my curiosity, I explored it. My luck was that I picked a few problems over the years that had escaped notice. Well, they are as likely to be forgotten as Horowitz's angelic rendition of Schubert.
Given what you have written and the questions that you have studied, of what are you most proud?
I have never regarded myself as a deep thinker, thinking "big thoughts." Nothing like that. I am really like a Dutch maid cleaning out dark closets. Let me give you [an example]…The debate about the death penalty has revolved largely about the question: Is it or is it not a deterrent? But I asked myself the question a lawyer asks: Is it constitutional? The argument against the death penalty was that it is "cruel and unusual punishment." Justice Brennan insisted that the death penalty is a cruel and unusual punishment. He was a would-be saint. The Fifth Amendment says that nobody shall be deprived of his life without due process of law, which means if you give a man a fair trial, you can deprive him of his life. Now the Eighth Amendment must not be read to prohibit what the Fifth Amendment allows. Again, that was not a profound insight. It was on the face of the Constitution. It doesn't hurt to read the Constitution yourself, by the way.
What advice do you have for those who want to engage in a long and productive life as you have—a happy life?
I cannot say I have had a "happy life." It has been a life of struggle, of climbing walls that have seemed insurmountable, of great disappointments. I was buffeted by a series of accidents that bumped me into a life of scholarship. When at age 65, I retreated from a life of action and settled in Concord, I found great contentment in wandering where my intellectual curiosity led me. Whether this would fit within the average conception of "happiness" I cannot say. Nevertheless I venture to think two things are essential for a happy life. First, I would list a rich companionship with one you love. To me that is central. The second thing is to enjoy what you are doing. If you are doing something that is hateful to you or extremely boring, I would say, don't waste your life doing it. Were I to distill the essence of my own life, it would be: enjoy what you are doing and never quit trying. One of the glories of America is that there is mobility, not so much upward as lateral mobility. Don't feel frozen into a situation you hate. Try and break loose. If necessary take some time in getting retraining. These are pretty mundane considerations. But then, in ninety years of living I don't think I have come out with much wisdom. I will claim only one act of wisdom in my life: when I was 26, I realized that to spend my life doing what I hated was to waste it.
So, you believe you made the right decision at 26, which significantly affected the rest of your life?
No question about it. It was the one time in my life I showed wisdom. Had I taken the other path, I would have saved myself seven years of retraining, but I did make the right judgment. I never hear an orchestral concert without breathing a thanks for my escape. Let me tell you of an incident that was pivotal. When I was 60 or so, I was in Vienna and went to a concert of the Vienna Philharmonic Orchestra under the baton of Karl Bohm. In the program notes, he told how he had been called to conduct the first performance in Dresden of an opera by Richard Strauss. As the stood in the curve of a piano, Strauss was thumbing through a Mozart score, and admiring one felicitous measure after another. "If only such melodies had been granted me," said Strauss. As a matter of fact, Strauss had been granted some wonderful melodies. But he said, "I did the best with what I have." To me this was like a vision on the road to Damascus. Up to that point I was sorely disappointed with myself; I craved to be an artist in writing, a real man of letters. Suddenly, I saw that if a giant like Strauss could say "I did the best I could with what I have," a lesser mortal like myself may say the same.
This interview was one in a series Constance Rossum conducted with mature adults who had moved from "success to significance" for Bob Buford's Leadership Network.