Academic journal article Northwestern University Law Review

Raoul Berger and the Restoration of Originalism

Academic journal article Northwestern University Law Review

Raoul Berger and the Restoration of Originalism

Article excerpt

Raoul Berger was born in Russia in 1901. He was a concert violinist until he abandoned that career for the law. He earned an A.B. from the University of Cincinnati in 1932 and a J.D. from Northwestern University School of Law in 1935. After two years in private practice in Chicago he earned an LL.M. from Harvard Law School in 1938. From 1938 to 1940 he was an attorney with the Securities and Exchange Commission; from 1940-- 42 he was a special assistant to the Attorney General; and from 1942-1946 he acted as counsel to the Alien Property Custodian. Berger was in private practice in Washington, D.C., from 1946-1961 and taught law at the University of California, Berkeley, from 1962-1965. From 1971 until his retirement in 1976 he was Charles Warren Senior Fellow in American Legal History at Harvard University. Northwestern acknowledged his accomplishments by creating the Raoul Berger Professorship of Legal History in 1992. This Article traces Berger's seminal importance in the development of "originalist" jurisprudence. It emphasizes his consistent adherence to originalism amidst the changes in constitutional law and politics that occurred during his long career.

Raoul Berger died in September 2000, just before reaching his onehundredth year. For the better part of the twentieth century he produced a massive body of scholarship.1 While he wrote on a variety of topics in law and legal history, he will be best remembered for his efforts to restore originalism in constitutional law and his consistent, unflinching defense of it as the only method of interpretation that ensured limited government and the rule of law. IMAGE FORMULA5

Berger maintained his originalism throughout his long career, during which he witnessed the major changes of twentieth-century constitutional jurisprudence and American politics. He observed the Progressive and New Deal attack on the laissez-faire Court2 and the ensuing constitutional crisis; the development of legal realism and the idea of a "living Constitution";3 and in the 1940s and 1950s the arguments for "judicial self-restraint" closely associated with Felix Frankfurter, Alexander Bickel, and the dominance of "legal process" jurisprudence.4 Like the realists, Berger rejected the natural rights arguments of the old Court, and like the process/selfrestraint school, he defended the proceduralism and deference that usually characterized judicial review and professional commentary in the 1940s and 1950s.5

In the 1960s Berger watched a new generation of liberals abandon the self-restraint tradition. The "simple justice" of Brown v. Board of Education6 and the civil rights movement animated those who have come to be known as "legal liberals."7 They insisted on immediate change and enthusiastically rejected the moderating and braking tendencies of the process/self-restraint school. This new generation saw the law as a "romance" and the Warren Court as a "judicial Camelot" that could advance justice. Unlike Berger's generation, for legal liberals the constitutional crisis of the 1930s did not present any continuing jurisprudential or practical difficulties.8 Thus, in the 1960s they advanced numerous reforms, many ignored or defeated in legislatures, by offering them in federal court as claims of constitutional right. Berger would mark the legal liberal embrace of judicial power as an historic turning point in American constitutional history.9 Until IMAGE FORMULA8

the 1960s, in his view, liberals quite properly had either attacked excessive judicial power or had been fastidiously cautious in its use.

Berger always identified himself as a liberal and disagreed with conservative political goals.10 Yet he also rejected legal liberalism and remained loyal to originalism because he understood it as an inherent and critical component of the rule of law and constitutional government, irrespective of the results it required in a given case. …

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