Posner v. Amar On The Constitution

For many years, Slate magazine has hosted an online “Breakfast Table” discussion at the end of each Supreme Court term.  The discussions are always very interesting.

This year’s discussion features a terrific (and snarky) exchange between a great jurist, Seventh Circuit judge Richard Posner, and a great scholar, Yale Law School Professor Akhil Reed Amar.  Here’s an excerpt of Posner’s view of the value of judges studying constitutional text and history:

[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 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. 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

And Amar’s view:

It might be asked why the current generation of Americans should ever resolve any genuinely difficult and important modern issue by paying close attention to words penned and deeds done long ago by now-dead men.

Despite—or perhaps because of—their age, the Constitution’s text and traditions provide important sources and resources for modern constitutional conversation and contestation. This old text and the history of its implementation furnish a common vocabulary for our common deliberations—a shared national narrative that can facilitate social cooperation and coordination for a diverse and highly opinionated populace. Also, many of the difficult issues faced by modern constitutional decision-makers are in fact surprisingly similar to those faced by their predecessors, because today’s constitutional institutions lineally descend from the Founders’ institutions. Presidents still sign and veto bills, the Senate still remains the judge of its own elections, the House continues to enjoy the power of impeachment, and so on.

Modern interpreters should attend to various elements of the Constitution’s original intent not because these old unwritten understandings always and everywhere tightly bind us today, but rather because we can learn from our constitutional predecessors. The evils that they lived through—that they experienced firsthand at epic moments in American history such as the Revolution and the Civil War—can help us understand why they put certain things in the text, to spare us from having to suffer as they suffered. Various rights emerged from real wrongs, wrongs we ignore at our peril.

Simply put, the written Constitution is often wise—typically, wiser than judges acting on their own steam—because the document distills the democratic input of many minds over many generations. More ordinary people voted on the Constitution in 1787-88 than had ever voted on anything else in world history. In saying yes to the Constitution that year, everyday people up and down the continent wisely insisted that a Bill of Rights be added—a Bill in which the phrase “the people” appears no fewer than five times. Later generations of ordinary Americans mobilized to enshrine in this terse text an end to slavery, a sweeping guarantee of equal birthright citizenship, an emphatic commitment to protecting civil rights against all levels of government, and radical expansions of the rights of political participation—to blacks, to women, to the poor, to the young, and more. These were epic democratic achievements, and they are all worthy of profound respect by today’s Americans. We, the people of the twenty-first century ignore the collected and collective wisdom of this old and intergenerational text at our peril.

Amar adds the following:
And speaking of the judicial role, you are quite dismissive not just of constitutional history, but also, apparently, of constitutional text and structure. If you had admitted in your confirmation hearings that judges should spend virtually no time carefully studying “the Constitution, the history of its enactment, its amendments, and its implementation,” would you have ever been confirmed? Or would your comments—which seem to me to go far beyond what David Strauss has publicly said, in a purely academic capacity—have been seen as disqualifying by the U.S. Senate, given the proper role of a judge in our constitutional system? Again, this is not a snarky gotcha question: I am sure you have thought about this confirmation-hearing question but I cannot recall ever having seen you address it.
Ouch.
Posner gets the final word (on a related discussion about the impact of legal academia on the real world):

As to Akhil’s points and to you, Dawn, I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. And a musical is going to transform constitutional law?And as for digging into constitutional history, the farther back you go, the less you will find that has even the slightest relevance to today.

In other words, show me the professoriate’s accomplishments, not the activities or aspirations.

With all due respect Akhil, you are certainly a very smart and successful law professor, but have you succeeded in changing judicial behavior? Judicial appointments?

Double Ouch. Point Posner.

UPDATE (7/8/16): In a new post on Slate, Judge Posner walks back his comments on the value, or lack thereof, of studying the Constitution:

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. 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. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise. Such compromises frequently involve avoidance of precision, thus allowing all the parties to the compromise to believe that their interests are not being neglected by the majority.

But the vagueness of the original Constitution and Bill of Rights, both being 18th-century creations, limits the ability of modern judges to derive results in modern constitutional cases from the text of the original Constitution and Bill of Rights, and indeed from many of the later amendments to the Constitution as well, such as the 14th Amendment with its much-debated Due Process, Equal Protection, and Privileges and Immunities clauses. The framers of the Constitution were very intelligent and experienced, but they could no more foresee conditions in the 21st century than we can foresee conditions in the 23rd century. So the choice for the modern judge is: dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems, or decide many constitutional cases by broad interpretation of the Constitution’s vague provisions, recognizing that interpretation so understood is not what we usually understand by the word. If I say “I understand what you just said,” it means that you have successfully communicated to me some idea or proposal, or what have you. But the framers of the Constitution cannot communicate with us regarding issues that they deliberately left vague, probably because they couldn’t agree on how or whether the text of the Constitution resolved the issues. (We know about these differences from the debates between the Federalists and Thomas Jefferson’s Democratic-Republican Party during the early years of the new nation.) Today’s judges are left to do the best they can, within the boundaries they perceive in phrases such as “due process,” or “cruel or unusual.” Their efforts in the aggregate create “constitutional law” based on what is sometimes called the “living Constitution.”

That’s all I meant to say, and it is by no means original with me. I regret not having been clearer.



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