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Originalism & the Violinist:Raoul Berger’s Original Intent

This video explores how Raoul Berger, a former concert violinist, revolutionized constitutional interpretation with his 1977 book "Government by Judiciary." Entering constitutional theory in his 60s, Berger challenged decades of "living Constitution" jurisprudence by advocating for "original intent" interpretation. Whether you're interested in the intellectual foundations of Originalism or the proper role of the judiciary in a democratic society, Berger's unconventional journey from artist to legal revolutionary offers powerful insights into contemporary constitutional debates. https://youtube.com/watch?v=waApw0P-_Oo

Transcript

In 1977, one book shook the foundations of constitutional law. Its argument was audacious: decades of Supreme Court decisions had strayed from the true meaning of the Constitution. Its author was a violinist. Raoul Berger—a former concert violinist who became a government lawyer during the New Deal—entered the world of constitutional theory in his 60s. Berger's late-career transformation from artist to attorney to academic iconoclast would reshape the landscape of American jurisprudence. Berger’s book, "Government by Judiciary," would become a cornerstone of the Originalist movement in constitutional interpretation. Berger championed a version of Originalism he called "original intent." He argued that the Constitution should be interpreted based on what its framers intended when they wrote it. This might sound straightforward, but it was revolutionary. For decades, the Supreme Court had been interpreting the Constitution as a "living document," adapting it to modern times. Berger argued this approach was fundamentally wrong. He believed judges were meant to apply the law, not make it. By stretching the Constitution's meaning, he said, they were overstepping their bounds. At the heart of Berger's argument in "Government by Judiciary" was a scathing critique of the Warren Court's expansive interpretation of the Fourteenth Amendment. Berger contended that the framers of this amendment never intended it to be a blank check for judicial activism. Through meticulous historical analysis, he argued that the amendment's original purpose was narrow: to constitutionalize the Civil Rights Act of 1866, which granted basic legal rights to former slaves. Berger's work challenged landmark decisions like Brown v. Board of Education, Miranda v. Arizona, and Baker v. Carr. He argued these rulings, however well-intentioned, weren't based on the Framer’s original intent. For Berger, if societal values had changed, the proper response was to amend the Constitution, not to reinterpret it beyond recognition. Berger's ideas laid the groundwork for later originalists, though many, like Justice Antonin Scalia, preferred to focus on the original public meaning of the text rather than the framers' intentions. Berger's work reminds us that these aren't just academic questions. They have real-world implications for everything from civil rights to criminal justice, from privacy laws to presidential powers. So as you delve into constitutional law, remember Raoul Berger. His journey from violinist to government lawyer to legal revolutionary shows that sometimes, the most powerful legal arguments come from unexpected places.

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