Last week, Judge Posner caused quite an uproar with his Slate column suggesting that studying the Constitution was a pointless exercise.
And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21stcentury. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about. In short, let’s not let the dead bury the living.
In a follow-up column, Posner offers this apology:
Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law—that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law.
That was not my intention, and I apologize if carelessness resulted in my misleading readers.
I would be inclined to chalk this up to a misunderstanding, but Posner–who is one of the most effective legal writers on planet earth–said in his Slate column what he had previously said many times before.
During his remarks at the Loyola Constitutional Law Colloquium, he said the text of the Constitution has no relevance:
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 . . . . 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.
(Judge Posner verified that my transcription of his remarks were accurate).
He made a similar same point last year in the Yale Law Journal:
Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense. . . . 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.
There is no doubt what Judge Posner thinks of the actual text and history of the Constitution–it is “nonsense.”
In his apology, he resorted to the old saw that there are vague and specific provisions of the Constitution, and judges should enforce the specific provisions of the Constitution–such as the thirty-five year old requirement for the Presidency:
What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague.
Yet last year at Loyola, he specifically said that the Supreme Court should allow a 21-year old elected as President to serve!
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.
He also rejected another one of the bright-line rules in the Constitution–the $20 amount-in-controversy requirement, which he called “absurd.”
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.
He also dismissed the relevance of the oath which gives him the authority to decided cases:
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.
I’ll repeat what I wrote last November:
I could go on and on, but you get the point. I admire Judge Posner’s candor about rejecting the Constitution as a binding document. As an academic theory, his pragmatism offers a powerful rejoinder to other formalistic theories. But he isn’t just writing as a scholar. He practices what he preaches, and strikes down laws on that basis. If he truly believes what he believes, then he ought not to use that same nonsensical Constitution as his license to invalidate democratically enacted laws. You can’t have your Constitution, and eat it too.
Ironically, as much as Posner loved to ridicule Scalia, here Nino is having the last laugh. Posner came clean with his absolute disregard for the text and history of the Constitution, and now after a complete repudiation, he is forced to backtrack–unconvincingly. As Will Baude would say, “Originalism is our law.”