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Observations on Raoul Berger’s “Original Intent and Boris Bittker,” 66 Indiana Law Journal 757 (1991)


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.

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