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Posner’s Inadequate Apology for Dismissing Study of the Constitution

Judge Richard Posner has recently dismissed the study of the Constitution of the United States. He said:

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.

That was an extraordinary and indeed shocking comment from a federal judge, but sadly his later apology or clarification is insufficient. There Judge Posner expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:

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.” This vagueness justifies judges in making a “living Constitution.

But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully.  And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context. To be sure, some of that meaning is lost on a modern ordinary reader, but this is precisely why the Constitution repays years of attention.  To take  as an example a  clause that Posner gives as an example of constitutional vagueness, the ordinary meaning of term “unusual” in  the prohibition against “cruel and unusual punishments” might seem very vague.  But John Stinneford’s research has shown that the meaning of unusual reflects the legal concept of desuetude. That is, the penalties that are prohibited as unusual  are those that have fallen out of usage long enough to show a stable multigenerational consensus against them.

And Judge Posner’s claim that the political situation tended to lead to vagueness is also one requiring more historical analysis.  Far from being in conflict on many key issues, the Framers shared important principles—for instance, that they should enjoy the traditional rights of Englishmen, which reflects much of what they wrote in the Bill of Rights. And it is not at all clear that the Framers would respond to issues about which they disagreed by putting into the Constitution vague provisions to paper over differences.  Vague provisions could be spun by opponents of the Constitutions as having the worst possible meaning, endangering the ratification of the whole document.

And even if one agrees that some provisions are vague, judges should consult the Constitution to determine how they are to treat vague provisions in the course of judicial review.  I have argued that the Constitution’s judicial power imposes a duty of clarity, permitting judges to invalidate acts of other branches only when they have tolerably clear basis in law to do so.  Thus, judges have no warrant to use their gloss on vague provisions to invalidate legislation.

It is a golden age for explicating the original meaning of the Constitution, as ever more historical resources are coming online. Judge Posner would have much to contribute, if he looked at this work with his gimlet eye, rather than disparaging its utility.

Reader Discussion

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on July 06, 2016 at 23:49:28 pm

"some of that meaning is lost on a modern ordinary reader, but this is precisely why the Constitution repays years of attention from serious scholars"

Modern ordinary readers you so arrogantly ignore never were loyal British colonials who waged war for independence from England. Many of us think scholarly law professors have enslaved the USA in Blackstone instead of leading the way to revising the constitution for the USA every 19 years as Thomas Jefferson suggested.

A civic life may be established by willing people using 1) the preamble to the constitution for the USA to coordinate civic collaboration, 2) the indisputable facts of reality to resolve civic issues, 3) precious privacy respecting personal pursuits, and 4) continual improvement of the constitution for the USA.

The consequence would be real-no-harm private liberty with civic morality--a way of living that is inviting to children and children to be born and thereby to adults. Observing better civic life, the initially unwilling adults would gradually join a civic people, making the totality, We the People of the United States a possibility at last.

I wish you, Rappaport and Posner would collaborate as a civic people rather than compete for dominant opinion. We the people will not accept opinion as the bedrock for civic morality.

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Phil Beaver
on July 07, 2016 at 11:39:39 am

"... you so arrogantly ignore..."

Is this the civic morality of which you so fulsomely boast?

I'll have none of this "collaborationist" fantasy.

For the record, Prof. Rappaport is anything but arrogant and dismissive. Rather like any good scholar, he will at times emphasize a point(s) in order to make plain an argument. If this involves an opinion contrary to your own somewhat marginal thinking, I would submit it is not arrogance but simply the workings of a good mind engaged in professional discourse. Of course, Rappaport suffers from the same thing that most of us do - we are unable to clearly apprehend and, because we cannot apprehend, later propagate all those "indisputable facts of reality" which are seemingly quite clear to you.
Does your psychiatrist during your "collaborative" sessions also recognize these indisputable facts?

Stop it and behave yourself. simply because one ignores folly does not make one arrogant or dismissive.

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gabe
on July 07, 2016 at 17:12:58 pm

Psychiatrists prescribe antipsychotic meds. Meds are chemicals. Chemicals are physics, so they are next to godliness. What's the most divine thing to do here?

... just sayin'.

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Scott Amorian
on July 07, 2016 at 18:01:48 pm

"What’s the most divine thing to do here? "

Why???? COLLABORATION, of course!

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gabe
on July 07, 2016 at 18:04:08 pm

Oops, I just realized, this essay was by John McGinnis.
Same goes for him as for Rappaport. Both are rather *civil* individuals unlike their detractors!

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gabe
on July 07, 2016 at 20:01:31 pm

It's OK. We know what you meant. Same goes for both of them. Professionals through and through.

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Scott Amorian
on July 08, 2016 at 08:12:01 am

Technology has changed, but the human condition has not. The brilliance of the Constitution is not its currency or contemporary relevance, but its endurance. It endures because it captures the instincts and foibles of mankind in a way that promotes the aspirational while constraining inherent human inadequacies.

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William S Holland
on July 08, 2016 at 18:03:14 pm

This is a post, not an offer to collaborate. The gabe of anonymity and Scott Amorian also unknown to me, play the sophomoric game of ad hominem response and straw-man falsity on most of my posts. For short, I’m going to refer to g&SA. I have wondered if “gabe” was a novel use of anonymity by McGinnis and now I wonder if Rappaport has such a stand-in for annoying thinkers like me.
In my work to establish A Civic People (ACP) of the United States, the distinction “civic” is well defined to mean the collaborative persons living in the same space-time. Despite my definitions, g&SA insist on tacitly converting my “civic” into their “civil” or “social,” the problematic words that block minds from civic morality—justice among ACP.
The problem with “civil” and “social” was illustrated in a compound usage by James Madison on June 20, 1785: “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” I have two candid rebukes for Madison. First, I have no regard for his “Civil Society,” since, as an intellectual construct, it does not conform to the indisputable facts of reality (TIFR). Second, I will not address the precious privacy of his “Governour of the Universe,” since it is not a civic topic. Nothing about anyone’s real-no-harm (RNH), precious, private practice, religious or not, is a civic issue. However, if Madison somewhere defined “Governour of the Universe,” to be physics, I’d gladly discuss, because physics—mass, energy and space-time—is the reality humankind must discover, understand, and use wisely. Physics does not negate the god hypothesis yet does not affirm any God hypothesis.
Since August, 2015, I have reached out to this forum to collaborate on three powerful tools—civic morality, physics, and the preamble to the constitution for the USA--to help reform the USA from the dysfunction of opinion-based law. TIFR rather than opinion is the bedrock on which We the People of the United States can fulfill its promise. ACP can, by example, lead.
But collaboration is needed for ACP to emerge. Here again, we carefully define civic collaboration. A speaker explicitly expresses a heartfelt civic concern and possible solutions—a proposition. Listeners question the words and phrases so as to relate to their experiences and observations. Both speaker and listeners are collaborators during this clarification process. If full agreement emerges, the collaborators consider whether or not the possibility for a better future has been created, and if so, if there must be work to make it happen. They may create a project to effect the change. Sometimes, listeners’ experiences and observations, on clarification of the speaker’s proposition have an alternative proposition. If so, they become speakers and the processes is repeated. There may be several iterations before the possibility for a better future emerges.

Madison’s statement was arrogant not only to anyone born in Knoxville, TN, USA, as I was, but arrogant against physics, which for all we know came from a god, but not Madison’s god as a prerequisite for civic morality. Madison did not think he was arrogant, because he was addressing like-minded believers, even though his speech, Memorial & Remonstrance, is a strange exhibition of contest between deism and factional Protestantism. (It is easy to predict that g&SA would insist that “factional” is a wrong depiction of “sectarian” or “Christian sect” but they might find it easier to comprehend as “factional Christianity” or “factional religion.”) After the quote I shared above, Madison seems to switch from deism to say, “During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”
Equally arrogant writing by Madison is in the Federalist Papers, especially #10.
When McGinnis wrote, ”To be sure, some of that meaning is lost on a modern ordinary reader, but this is precisely why the Constitution repays years of attention,” he exhibited 2016 arrogance on par with James Madison’s 18th century arrogance and perhaps derived therefrom. Like Madison, for his future, McGinnis overlooks that a 2016 ordinary reader has the advantage of history’s most explosive discovery era--the last two-hundred, twenty-five years.

As for g&SA, I appreciate their ad hominem and straw-man work and would love to enjoy an Abita beer for each with them one day. Yet, as I mentioned to start, I am not asking for a response.

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Phil Beaver
on July 08, 2016 at 19:16:02 pm

Would you JUST GO AWAY?

With your paranoid delusions, you apparently believe that YOU ARE IMPORTANT ENOUGH to cause two well known and respected scholars to resort to a convenient *nom de plume* in order to respond to you.
YOU SIMPLY ARE NOT OF ANY IMPORTANCE!!! and ought to just go away.

What does your pyschiatrist say of your delusions of grandeur; have they recommend Reynolds Aluminum foil for your headgear? Quite frankly, Phil baby, you are not of sufficient importance for ANYONE to respond to you.

Now go and take your meds, and be quiet.

And oh by the way, I am very real and I suspect that the dissatisfaction that others feel with your incoherent ramblings are AS REAL as my own.

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gabe
on November 04, 2018 at 11:54:58 am

I believe that the most important thing that every child should know is our Constitution. I hope that they will learn it by reading various articles at uk essay writing service about it. Let's help them find out the history of our nation!

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David Myers

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