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Observations on Raoul Berger’s “Original Intent and Boris Bittker,”
Bittker, Boris
Bittker, Boris
Abstract
Blessed with hindsight gained in the early days of the twenty-first century, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past recounted the victory of the Jurisprudence of Original Intent over its multifarious "living Constitution" rivals in the interpretation of the Constitution, a victory exemplified by the three unexpected decisions described there in detail and summarized below. This apotheosis of Original Intent not only drove skeptics and agnostics into their intellectual bomb shelters, but also touched off an avalanche of litigation in which a host of assiduous lawyers charged that countless conventional principles of constitutional law flagrantly violated the intent of the framers. Although the specific complaints were as varied as the entire corpus of constitutional law, all of these cases raised a "hitherto unasked ' question of law: What counts as evidence of the Original Intent of the framers? In the interest of efficient judicial housekeeping, this Special Panel of the United States Court of Appeals was created in 1998 to address that threshold issue, as well as a similarly fundamental issue, viz., what principles should determine whether earlier constitutional decisions, if found inconsistent with the intent of the framers, should be reversed, qualified or preserved? Mr. Berger's article, Original Intent and Boris Bittker, (of which we take judicial notice) is an important contribution to our inquiry, though four preliminary matters must be cleared up before we get to the merits of the author's views.