Wednesday, June 15, 2011

Bernstein on "The Constitution as Exploding Cigar..."

New from R.B. Bernstein (New York Law School) is "The Constitution as Exploding Cigar and Other 'Historian's Heresies' About a Constitutional Orthodoxy," published in the New York Law School Law Review 55, no. 4 (2010/11).  It is a revised, expanded, and annotated version of a lecture that he has given in various forms (including the one we mentioned here).

According to the intro, Bernstein (1) "addresses the contextual frameworks, both intellectual and technological, that shape our interpretations of the Constitution"; (2) "discuss[es] the 'Absent Founders,' individuals who are relevant to the Constitution's origins but are often overlooked in the search for original intent" (e.g., Aaron Burr); (3) "explore[s] the consequence for originalism of rapid constitutional change during the Revolutionary Era"; and (4) "explain[s] how" various "problems in how the Constitution operated[] caused the Founders' expectations, understandings, and intentions to blow up in their faces."  A final section "offer[s] some tentative conclusions about the consequences of these historian's heresies for the enterprise of constitutional interpretation."

The full text is available here.

1 comment:

Shag from Brookline said...

R. B. Bernstein comes through once again with a well thought out paper on a timely subject. While he mentions "forensic history," he avoids using the supposedly pejorative "law office history." I better understand the role of the historian in comparison to that of the lawyer advocate.