Page images


Raoul Berger*


For more than a century Congress and the President have been stubbornly engaged in a boundary dispute bottomed on irreconcilable claims to constitutional power. Pitted against a claimed absolute executive discretion to withhold information is a claimed plenary congressional power to demand it. Although boundary disputants are notoriously unwilling to relinquish their claims it is yet remarkable that the issue has never been submitted to the courts, for ours is a land, as de Tocqueville early cbserved, where “scarcely any political question arises ... that is not resolved, sooner or later, into a judicial question."

The preference of the disputants for the recurrent skirmishing of a Cold War, some suggest, may be attributable to uncertainty as to their respective rights, or to an expression of the American genius for political compromise, an outgrowth of the "system of checks and balances." There is little if any historical warrant, I propose to show, for the notion that executive privilege was ever , intended to be among the checks on the legislative power of inquiry. And in evaluating the "compromise," one should consider not only the historical validity of the respective positions but also the cost of the dispute in terms of impaired governmental efficiency. As one watches the legislative process grind to a halt for long-drawn bickering about the congressional right to often innocuous information, one is led to ask with Senator Neely whether the time has not come to submit the "intolerably prolonged controversy" to the courts.3

* Visiting Professor, University of California Law School, Berkeley; former General Counsel to the Alien Property Custodian; former Chairman, Section of Administrative Law, ABA. The related question of what information the public, as distinguished from the Congress, is entitled to obtain, is not discussed in this article. The writer is indebted to Dean Edward L. Barrett and Professor Albert Ehrenzweig for criticism.

The volume of citations makes it necessary to employ abbreviations for frequently cited authorities. See Appendix for key.

11 DE TOCQUEVILLE 280. See also Frankfurter, Chief Justices I Have Known, 39 VA. L. Rev. 883, 895 (1953) (“By the very nature of our Constitution, practically every political question eventually, with us, turns into a judicial question”).

2 Bishop 477, 491; Kramer & Marcuse 916; Younger 784. 8 Kramer & Marcuse 867. Republican Senator Carlson agreed with Senator




Each generation tends to read history in the focus of its own preoccupations; each thinks that it enjoys a special vantage point. So it is that a contemporary reevaluation of the historic controversy must be colored by two important events of our time. The first of these was an elaborate memorandum delivered to the Senate by Attorney General Rogers during the Eisenhower Administration, pressing the claim of “executive privilege” to its utmost extreme: "uncontrolled discretion” to withhold.' And the reduction of that claim to practice, happily illustrated by a "casebook” of examples for the 1954-1957 period, facilitates an evaluation of the practical consequences which flowed from the exercise of such discretion. The second event was the Draconian edict issued by President Kennedy to the executive branch whereby, but for one instance, he cut off all resort to executive privilege. His action may once and for all have exorcised a ghost: the idea that free congressional inspection of executive documents would cause the executive branch to “disappear from our polity, leaving in its place another unfortunate example of government by legislature.” For executive towers have not toppled, nor have prophecies of doom been realized.

Neely. Ibid. In 1956 a Senate Committee recommended that "steps be taken by the several committecs to provide a test in the courts to determine the respective powers of Congress and the executive agencies." Id. at 877.

For similar subsequent utterances, see Gov't Info. Memo. 48.
4 Att'y Gen. Memo.

6 Kramer & Marcuse. And "this discussion, lengthy as it may appear, does not and cannot possibly, include all the incidents which occurred from 1953 to 1960." Id. at 898. Although the article professes to cover the years 1953-1960, id. at 624, the vast bulk of it is devoted to the years 1954-1957, being largely based on agency replies to congressional requests for a compilation of refusals. Id. at 628. The authors list one refusal in 1958, id. at 877; two in 1959, id. at 849-52; and the U-2 incident in 1960, id. at 891. One may conjecture that the years 1957-1960 would yield as rich a harvest as the 1954-1957 period.

6 Gov't Info. Memo. 43. See also note 548 infra.

I would not suggest that President Kennedy's retreat from the broad withholdings of the Eisenhower period reflects a peculiar Democratic tenderness for congressional sensibilities, for Democratic Presidents Cleveland, Franklin D. Roosevelt and Truman too have withheld information from Congress. Att'y Gen. Memo. 14-16, 23-30. President Kennedy's drastic curtailment of claims of executive privilege is possibly attributable to his first hand familiarity as a member of both houses with congressional inquiries, and to Attorney General Robert Kennedy's earlier frustrations as chief counsel to a Senate investigating committee. Kramer & Marcuse 831. Assistant Attorney General Norbert A. Schlei, testifying before a Senate Subcommittee on Oct. 31, 1963, said that: “The Attorney General (Kennedy), in part as a result of his experience here on Capitol Hill, has an intense and abiding interest in the matter of public access to official information." Moss Hearings 195.

Similarly, the frequent references herein to practices during the Eisenho ver Administration are without political motivation but are based instead on the fact that it was his Attorney General who first advanced a claim to "uncontrolled discretion" and the fact that the Kramer and Marcuse "casebook" massively illustrates the practices during the 1954-1957 period, thereby facilitating consideration of how the claim operated in practice.

7 Kramer & Marcuse 906; Younger 771. Bishop 486, opined that whereas the



(Vol. 12: 1043

As might be expected, the sharpened executive-legislative conflict which characterized the Eisenhower era produced a flood of commentary, ranging through Aristotle and Montesquieu to President Truman, from the implications of the separation of powers and our democratic system to practicalities of government. Adherents of executive privilege have argued chiefly from the separation of powers, apparently viewing it as a self-defining concept on which one may confidently erect a logical system. They have largely disregarded parliamentary and colonial history prior to the adoption of the Constitution, without which "the language of the Constitution cannot be interpreted safely."10 For the threshold question is: What does the separation of powers separate? What were the attributes and powers of the separate branches created by the Framers? On this issue, in Holmes' phrase, "a page of history is worth a volume of logic."'11

The appeal to history is itself the subject of wide-ranging debate, of which only the barest hint can, and yet must, here be given. For the function of history in the construction of the Constitution is central to the role of the Court in our democratic system. Behind the insistence of Jefferson and Madison that the

withholding practiced by the' Eisenhower administration was "quite tolerable, unlimited congressional access to executive information ... would almost certainly be intolerable.” For further discussion, see notes 555-59 infra.

8 Proponents of "executive privilege" are generally either past or present members of the executive branch. Att'y Gen. Memo.; Bishop; Kramer & Marcuse; Philos; Wolkinson. A private proponent of the privilege is Younger.

The congressional vicw has been espoused by a counsel to a congressional committee; e.g., Mitchell; by a former counsel, Schwartz; by a scholar, Collins; and by a newspaper editor, Wiggins. For additional authority, see GELLHORN & Byse 615.

The present writer was one of a panel with Dean Frank C. Newman and Professor Kenneth Culp Davis which was retained in 1959 to advise the Comptroller General as to his right to insist on delivery of an Inspector General's report in light of the Air Force's refusal to furnish it as required by statute. Now, after a lapse of six years, a sojourn in the Groves of Academe has afforded an opportunity to restudy the entire matter, to do further research and to make a fresh and disinterested appraisal.

Younger; Att'y Gen. Memo. 3. Cf. Kramer & Marcuse 899, 905.

10 Ex parte Grossman, 267 U.S. 87, 108 (1925). “The language of the Consti. lution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of a fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood." Id. at 108-09. See also Popovici v. Agler, 280 U.S. 379, 383-84 (1930); South Carolina v. United States, 199 U.S. 437, 450, 456 (1905).

11 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).




sense in which the Constitution was adopted is the only safe mooring 2 lurked the fear that a Court freed of the restraints of that "meaning''18 would be free to give effect to its personal predilections and to become a super-legislature.94 Were the American people to be persuaded that controversial decisions proceed from just such predilections rather than from constitutional imperatives, the place of the Court in the scheme of things would be dangerously undermined. 15 Opposed to the Madisonian "strait jacket” approach is Marshall's view that an expanding nation requires a Constitution that can be "adapted to the various crises of human affairs."16 When "adaptation" has been thought to approach “amendment" there have not been wanting voices to remind us that the Constitution provided a special machinery for amendment."? If it is "cumber

12 In the very first Congress, Madison said: “The decision that is at this time made, will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole Government." 1 ANNALS OF CONG. 514 (1789-1791). Later he wrote with respect to "the sense in which the Constitution was accepted and ratified by the Nation": "In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers." 9 WRITINGS OF MADISON 191, 372 (Hunt ed. 1906).

Jefferson said: “ 'Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.'” PATTERSON 70.

Professor Bickel remarks about Chief Justice Taney's “meticulous adherence to original intent" in Dred Scott v. Sanford, 19 How. (60 U.S.) 393, 426 (1856), that "such views, when they prevail, threaten disaster to government under a written constitution.” Bickel, The Original Understanding 3. Taney's "history” was at best debatable. MCLAUGHLIN 559, 561-62. And it was not resort to this history but the misguided attempt, expressing a conviction shared by Justice Curtis, to "quiet all agitation on the question of slavery in the territories,” HOCKETT 239, which propelled the Court into an area for which the judicial process was utterly unsuited. No judicial oil upon the waters could quella dispute that shortly was to tear the nation apart.

But, as Professor Bickel states, “it is a long way from rejection" of the Taney doctrine "to the proposition that the original understanding is simply not relevant. For arguments based on that understanding have a strong pull. . . . And they have been relied on by judges well aware that it is a constitution they were expounding." Bickel, The Original Understanding 3-4.

18 For an acute analysis of the pitfalls that beset the search for historical meaning, see Wofford.

14 Professor Bickel justly remarks that were the ultimate "reality” that judicial review spells nothing more than "personal preference," then judicial "authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy." BICKEL, LEAST DANGEROUS BRANCH 80. See also id. at 93.

15 The people "are unwilling to admit that the Constitution is, as Charles Evans Hughes said, 'wbat the judges say it is.'” Tweed 38.

Compare the recoil from the laissez faire reading of the 1920's and 1930's. BICKEL, LEAST DANGEROUS BRANCH 45.

16 McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 414 (1819). Charles Curtis maintained that, "only present meanings are pertinent. We cannot have our government run as if it were stuck in the end of the eighteenth century when we are in the middle of the twentieth." CURTIS 64, 68.

17 Cf. the dissenting opinion of Mr. Justice Black, who was joined by Justices



(Vol. 12: 1043

some,"18 it was made so in order to brake hasty majority action that might imperil minorities.19 But whatever the merits of the appeal to history, it has been the almost invariable practice of the Court, with varying degrees of conviction, to turn to history for guidance.20 For present purposes, it suffices to regard historical evidence, not as conclusive, but as a necessary beginning upon which we can rely until, in Holmes' phrase, "we have a clear reason for change."21 The clinical materials for the 1954-1957 period afford a convenient means of assaying the practical “reasons for change.”

One who would espouse the claim of Congress to be fully informed must face up to the fact that the rampant excesses of the McCarthy Senate investigations left the process in bad odor.22 McCarthyism was itself but the full blown exemplar of an earlier practice, of which the Supreme Court gently stated that "following World War II, there appeared a new kind of Congressional inquiry

Harlan and White in Bell v. Maryland, 84 Sup. Ct. 1814, 1864, 1877 (1964): "And in recalling that it is a Constitution 'intended to endure for age; to come,' we also remember that the Founders wisely provided for the means of that endurance. Changes in the Constitution, when thought necessary, are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court."


19 In the Virginia Ratification Convention, Patrick Henry pointed out that: "A bare majority of these four small states may hinder the adoption of amendments; so that ... one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to the most salutary amendments." 3 Elliot's DEBATES 50 (2d ed. 1941). But the Constitution was designed as a bulwark for minorities; and it can be sapped by freewheeling interpretation.

20 In Bell v. Maryland, supra note 17, where Mr. Justice Black condemned judicial "amendment,” Mr. Justice Goldberg, whose substantive views were diametrically opposed to those of Mr. Justice Black, agreed with him that, "of course our constitutional duty is, to construe, not to rewrite or amend, the Constitution! ... Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and purposes of the Framers." 84 Sup. Ct. at 1849. See also United States v. Barnett, 376 U.S. 681 (1964), where both the majority and dissenters appealed to history for confirmation of opposing views. As Professor Bickel says, historical materials "are of crucial significance to any conceivable process of judicial review and in one fashion or another, and to one end or another, they have been consulted throughout the recorded experience of the Supreme Court." BICKEL, LEAST DANCEROUS BRANCH 98. For additional reflections on the subtle problems presented see id. at 86, 90, 94, 99-110, 236-37. See also HURST, THE ROLE OF HISTORY 55.

21 HOLMES 290. Or, as a vigorous critic of the appeal to history has recently put it, historical "inquiry may well lead the judge to view the historical evidence as a kind of hurdle—not something binding, but something which only a strong modern justification can overcome." Wofford 532. On any theory it is incompatible with the lofty role of the Constitution to "expand" it as waywardly as an accordion.

22 For details see BARTH 26, 40-65, 83, 154-55; TAYLOR 122-35, 266-69, 184-85. Taylor wisely counsels that "we must not allow general conclusions about Congressional investigations to be determined by our personal approval or disapproval of individual investigators, be they Senator McCarthys or Ferdinand Pecoras." Id. at 83.

« PreviousContinue »