The Public Interest

Democracy and Original Intent

Lino A. Graglia

Fall 1989

THE BULK of Original Intent consists of free-standing, unconnected, and therefore somewhat repetitive summaries of Leonard Levy's earlier work on the historic background of various constitutional provisions and doctrines. These chapters are generally informative and interesting, treating such topics as the origins of judicial review, search and seizure restrictions, and the privilege against self-incrimination. They add little, however, to the stated purpose of the book, which is to demonstrate on historical grounds the alleged fallacies of "a jurisprudence of original intent." Advocates of such a jurisprudence believe that judges should interpret the Constitution to mean what "the Framers"--its authors and, particularly, its ratifiers--intended it to mean. Their belief is controversial among contemporary constitutional scholars because it is inconsistent with and would invalidate nearly all of contemporary constitutional law. That its correctness is nonetheless virtually self evident helps explain the passion, not to say rage, with which it is denounced in Original Intent.

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