Judge Kopf Defends Judge Posner on the Constitution

December 2nd, 2015

My post on Judge Posner and the Constitution struck a nerve. In the past thee days, that post alone has received nearly 6,000 hits. (For a point of comparison, on average, my blog gets about 40,000 hits a month). It also generated comments throughout the blogosphere (see Instapundit, Volokh Conspiracy, Above The LawThe Federalist, and elsewhere). But the most unexpected response came in my blog’s comment thread from U.S. District Court Judge, and once-and-future blogger Richard Kopf.

Dear Professor Blackman,

With great respect, I think you are being too hard on Judge Posner when you essentially accuse him of violating his oath of office. While it is true that Posner rivals Holmes as a realist, Judge Posner follows explicit Constitutional commands (despite their old age) and Supreme Court precedents that are indisputably on point.

It is true that when he finds ambiguity he drives his truck through the open door and that is true whether that ambiguity is found in the Constitution or the Court’s prior opinions. But so what?

The Constitution does not specify a particular mode of Constitutional interpretation. Chief Justice John Marshall taught us that in 1803.

All the best.

Richard G. Kopf
Senior United States District Judge (Nebraska)

I appreciate the reply from Judge Kopf.

Judge Posner doesn’t simply drive a truck through that texts that he finds “ambiguous.” Judge Posner insists that even a crystal-clear text, like the 7th Amendment, ought not to be enforced due to inflation. If Judge Posner truly believes that texts written in the 18th century are “absurd” or “nonsense,” then it is impossible for him to take one of those texts–the oath clause–seriously.