At the 2015 Loyola Constitutional Law Colloquium, Randy Barnett offered a presentation about his new book “Our Republican Constitution: Securing the Sovereignty of the People.” (I reviewed an earlier draft of the book–it is a very significant book you ought to read). Afterwards, Judge Posner commented on Randy’s book, and weighed in on many topics. Among other things, Posner said he was not interested in the text or history of the Constitution, does not think that the 14th Amendment guarantees Birthright Citizenship. He adds that he first tries to seek a “sensible” solution without concern for precedent, and then checks if precedent “blocks” the sensible solution. Here are some of the highlights of Judge Posner’s remarks, based no my (rough) transcription.
On the value of text and history:
I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.
On the 7th Amendment:
There are things that are in the text of the Constitution that are absurd. One is the idea that if the matter in controversy is at least $20, you have the right to a jury trial. That is absurd. $20 in the 18th century meant something very different than in the 21st century. What the Supreme Court should say when people bring jury cases for $20 is that provision is archaic and will not be enforced.
On birthright citizenship:
Another example is the controversial provision recently being discussed is the 14th Amendment is birthright citizenship. What about these foreigners come here–pregnancy tourists–who want to have their child born in the United States, so he will have refuge if things go bad in his country. But I don’t think that is a necessary interpretation. I’m perfectly happy with these people, I don’t care. Doesn’t bother me in the slightest. But I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizens. That is what they meant. They didn’t want a southern state to say “no more slaves, but children of slaves, citizens, no.” That’s what they were worried about. They weren’t worried about tourist pregnancies.
On the 21-year-old President:
There are also provisions that are not regarded as justiciable. If a candidate for President happened to be 25, or 21 (like Napoleon) and was elected, and suit was brought to say he is too young, I would think a sensible court for the Supreme Court to say this is not not justiciable. If people want the young president, fine. There is no legal analysis to be performed. Not everything in any document, statute or Constitution, is necessarily justiciable.
On David Strauss’s view of the Constitution:
If you look at the entire body of constitutional law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868. David Strauss, University of Chicago, has argued that the Constitution is an authorization to the judiciary to create a body of common law, limiting powers of other government officials. That’s the reality. The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular interpretation.
On choosing a “sensible response.”
I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.
On his “aim” as a judge:
I’m a pragmatist. I see judges as trying to improve things within certain bounds. There are practical restrictions on the exercise of one’s moral views. There are specific laws that are deeply entrenched. Where the judges are free, their aim, my aim, is to try to improve things. My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.
On being annoyed at Magna Carta:
I have been extremely annoyed by the fuss being made about Magna Carta. This is the 800th anniversary of Magna Carta. Magna Carta has absolutely nothing to so ay to us. The people who talk about Magna Carta, don’t understand Magna Carta, don’t understand history, don’t realize it was repealed a couple of years after. It was a power struggle between a bunch of aristocrats and a bunch of kings. The profession is always looking backwards, to the 1t8th century, to old decisions.
On looking at precedent only after deciding what is the “best decision.”
And why would one want to start off an analytical exercise by looking backwards, by looking at what courts have done in a different culture, dealing with different issues, saying things that as a matter of linguistics can be applied to something that’s happening today. But of course they weren’t thinking about it. The time to look at precedent, statutory text, legislative history, that’s after you have some sense of what is the best decision for today. Then you ask whether it is blocked by something that happened in the past. That’s all I have to say.
On “interpreting the Constitution”:
I don’t think that is meaningful with regard to most statutes and regulations. What does it mean to interpret the Constitution. It means some issue has arisen that the Constitution does not address. If it addresses it squarely, if it is not kind of bizarre, even if it is like the $20 minimum for a jury trial, then you are applying a provision. When asked to interpret it, asked to make up a rule that has some conformity to something hundreds of years ago–this is true with statutes, the issue judges are asked to decide is an issue not addressed by congress, not in their scope of their consideration, involved something that didn’t exist at the time, electronic surveillance. What would the framers of the 14th amendment have thought about National security surveillance of people’s emails. That is a meaningless question. It is not an interpretive question, it is a creative question. nowhere more so than with regard to the 1st Amendment, the free speech clause. All it says is congress shall not abridge the freedom of the press. Look at what the actual law of expression is. Defamation is speech, but is actionable. Threats are actionable. Copyright infringement is actionable. Revelation of various secrets is actionable. Lawyer disclosing confidential conversations with client, that is actionable. An enormous amount of speech is not free. The first amendment cannot resolve it interpreted by thinking about the intentions, the notes of the constitutional convention, other sources from the 18th century. This seems to be the standard problem for judges dealing with the statutes or constitution or with precedents. It is not interpretation, it is just trying to find a solution to a solution to a question that has not been solved by legislature.
About the oath judges take to uphold the Constitution:
It’s funny to talk about the oath judges take to uphold the constitution since the Supreme Court has transformed the Constitution in its decisions. The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.
On his confirmation hearing in 1981:
I want to say a word about my confirmation hearing, about candor. This is a serious problem. The Senate confirmation hearing are absurd. The purpose of being confirmed is to survive hostile questions, and has nothing to do with telling the truth or being candid. That’s why I have to tell about my candid moment. It is just 1981, court of appeals, and the Senate judiciary committee before which I had my hearing, November 1981, was presided over by Sen. Strom Thurmond, and he was the only senator who bothered to show up. I actually noticed when I was sitting in the audience section, there were several judges ahead of me. Thurmond’s first question was “Do you have someone to introduce to the committee.” The other judges would have a wife or child. I was there by myself. Thurmond said, “Prof Posner do you have any of your family to introduce to the committee.” I said “no.” He replied, “You do have a family don’t you.” I replied, “I have a wife, two children, a dog and a cat.” I thought that depicted me as a model american. He was happy.
For the remainder of my testimony, which lasted 4 or 5 minutes, he asked me at one point, “Do you think it is the business of judges to apply the law or to make the law.” So I said “Most cases judges are applying the law, but often the law is uncertain, and the judges are actually making law.” So he accepted it. But when I got the printout of the hearing, my answer had been changed by someone to “apply the law, not make law.” So this was a farcical proceeding, rendered more so by the fact that the judges having their hearing that day were first asked to meet the Justice department where they were told what questions they would be asked by Republican Senators. This was a republican congress. They were told the answers before their test, didn’t seem quite right. I wasn’t told they would talk about the family question.