Richard Posner’s phony apology for saying that studying the Constitution has “no value”

Celebrated Appeals Court judge Richard Posner recently caused quite a stir when he wrote for Slate that, “I see absolutely no value to a judge of spending decades, years, months, weeks, day[sic], 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 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.”

Of course, Posner went back to Slate a week later and apologized. He said, “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.”

The shrewd reader of each writing should notice that in the former writing Posner said that “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.” This comment can’t be read to be a dispassionate comment stating that Strauss is right as a matter of fact–this comment immediately follows Posner’s aforementioned comment “that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today,” and has to be read to mean that Posner agrees with Strauss that the Constitution should be seen as a system of common law.

Now, I am fairly familiar with David Strauss’ views about the Constitution being a common law system (although I much prefer Leo Strauss to David Strauss). When Posner, in his apology, distances himself from the common law approach, he notes that “it is undeniably true that… the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility…, the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority,” these are not unlike concessions that David Strauss makes in his account of the Constitution as a system of common law. For instance, Strauss says that “no one seriously suggests that the age limits specified in the Constitution for Presidents and members of Congress should be interpreted to refer to other than chronological (earth) years because life expectancies now are longer, that a President’s term should be more than four years because a more complicated world requires greater continuity in office, or that states should have different numbers of Senators because they are no longer the distinctive sovereign entities they once were.”*

In his apology, Posner attempts to clarify his position on studying the Founding era, saying that “many of [the Constitution’s] provisions are quite vague.” And yet, he had already excluded the “very detailed provisions regarding congressional authority” which are actually quite a lot of the present dispute over Constitutional jurisprudence. Congress has enumerated powers. It has the power to legislate. The Supreme Court does not have the power to legislate since that power is given specifically to Congress. This is part of the doctrine known as separation of powers.

That Richard Posner is considered one of the greatest legal minds of our time is not well evidenced by these writings. His apology was a non-apology because he only reserves for the Constitution drafted in 1787 its most mundane non-controversial aspects. He isn’t even precise enough to avoid conflicting his argument when he notes the detail of separation of powers. Here, he seems to disregard the view that Constitutional originalism is even an important enough view that the best case should be made for it before it is rejected. I am not very familiar with his work generally, although I am fairly familiar with the debate regarding Constitutional jurisprudence, and these writings reek of the superficiality of modern thought. He will still have his chance to convince me otherwise, but I suspect that I will follow through and do my comprehensive writing explaining that the Living-Breathing Constitution not only isn’t Constitutional, but is completely ridiculous and a national scandal.


* David A. Strauss, Common Law Constitutional Interpretation, 63 University of Chicago Law Review 877 (1996).

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