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.

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