Chief Judge of the Seventh Circuit Court of Appeals Richard A. Posner has walked back a remark urging federal judges not to study the U.S. Constitution.
In a post on Slate last week, Posner wrote that he saw “absolutely no value” to federal judges studying the Constitution. The judge later acknowledged that his proposition inspired “an unusual number of criticisms” and sought to soften the edge of his original proposal.
“That was not my intention, and I apologize if carelessness resulted in my misleading readers,” he said.
But as Professor Josh Blackman of Houston College of Law has pointed out, Posner has publicly taken this position many times before.
At the Loyola Constitutional Law Colloquium in November 2015, Posner advocated “forgetting” the Constitution’s text in favor of other methods of judicial interpretation.
“I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution,” he said. “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.” Posner strongly identifies with the pragmatism of Charles Sanders Peirce and John Dewey, often resolving cases with an eye towards what he identifies as the “practical solution.”
He used practically the same language in a scholarly article in the Yale Law Review. “I think we can forget about the 18th century, much of the text,” he wrote. “We ask with respect to contemporary constitutional issues, ask what is a sensible response.”
Posner, perhaps the most widely cited judicial scholar on the 20th century (and, as Blackman notes, one of the most effective legal writers on the planet), has frequently argued that because many provisions of the Constitution were tailored in the eighteenth century and are intentionally vague, their utility to judges in 21st century is limited. He argues this reality puts federal judges in an untenable position.
“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,” he wrote on Friday.
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