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96 Nw. U. L. Rev. 253 (2001-2002)
Raoul Berger and the Restoration of Orginalism

handle is hein.journals/illlr96 and id is 263 raw text is: Copyright 2001 by Northwestern University School of Law        Printed in U.S.A.
Northwestern University Law Review                              Vol. 96, No. I
Essay
RAOUL BERGER AND THE RESTORATION OF
ORIGINALISM
Johnathan G. O'Neill*
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 Uni-
versity of California, Berkeley, from 1962-1965. From 1971 until his re-
tirement in 1976 he was Charles Warren Senior Fellow in American Legal
History at Harvard University. Northwestern acknowledged his accom-
plishments 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 oc-
curred during his long career.
Raoul Berger died in September 2000, just before reaching his one-
hundredth year. For the better part of the twentieth century he produced a
massive body of scholarship.! 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.
. B.A. Colgate University, 1991; Ph.D. University of Maryland, College Park, 2000. Lecturer, Insti-
tute of United States Studies, University of London. I gratefully acknowledge the guidance and support
of Herman Belz and Gary McDowell, as well as the financial support of the Earhart Foundation. This
Article is derived from my doctoral dissertation Challenging Modem Judicial Power: The Emergence
of Originalism in American Constitutional Theory, 1954- 2000 (unpublished manuscript on file with
the author).
1 The second edition of Berger's most famous book contains a bibliography of his work. See
RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH
AMENDMENT485-91 (2d ed. 1997).

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