‘I am not interested in the text.‘
To fully appreciate the current state of American law, one must appreciate the mind of Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. One of the nation’s most frequently cited judges, he is also one of the most respected.
Indeed, not since Oliver Wendell Holmes Jr. has there been an American jurist who has come so close to capturing the spirit of his age. Trained at Yale and Harvard Law, the 76-year-old polymath wields an inexhaustible pen, with 40 books to his name and hundreds of articles, touching on everything from antitrust law to counter-terrorism to sex.
Posner defies labels. He clerked for Supreme Court Justice William J. Brennan Jr. in the early sixties and was appointed to the bench by President Reagan in 1981. A leading practitioner of the University of Chicago law-and-economics approach, he is a market-oriented pragmatist whose penetrating analyses have a Humean flavor and display a fearless willingness to question even the most sacred notions.
Posner has disparaged privacy as ‘greatly over-rated, because privacy basically means concealment . . . to fool other people,’ and has scoffed at laws defending natural biological marriage as part of ‘a tradition of hate’ and ‘savage discrimination.’ (He voted to strike down laws defining marriage as one man and woman as violating the Equal Protection Clause.)
As a public service, I reprint below a few excerpts from a recent talk given by this esteemed jurist at a gathering of libertarian lawyers, on the topic of the role of the judge in our system. (My thanks to Josh Blackman for transcribing it.) After each excerpt, I append a brief translation for the non-lawyer. Enjoy.
On Text and History
I’m not particularly interested in the eighteenth century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the eighteenth century can guide our behavior today, because the people in the eighteenth century could not foresee any of the problems of the twenty-first century.
Translation: I do not feel bound by any text that is not of recent vintage.
On Textual Anomalies
There are things that are in the text of the Constitution that are absurd. One is the idea [in the Seventh Amendment] that if the matter in controversy is at least twenty dollars, you have the right to a jury trial. That is absurd. Twenty dollars in the eighteenth century meant something very different than in the twenty-first century. What the Supreme Court should say … is that provision is archaic and will not be enforced.
Translation: I do not feel bound by any law that is, in my opinion, out of date.
Translator’s Note: Actually, the twenty-dollar rule is neither archaic nor absurd.
What does it mean to interpret the Constitution? It means some issue has arisen that the Constitution does not address. … [For example,] the Free Speech Clause: all it says is Congress shall not abridge the freedom of the press. … [Yet an] enormous amount of speech is not free. The First Amendment cannot [be interpreted] by thinking about the intentions, the notes of the Constitutional Convention, other sources from the eighteenth century.
Translation: I do not feel bound by any so-called ‘legislative history’ or ‘original meaning.’
On Doctrine and Precedent
I’m a pragmatist. I see judges as trying to improve things within certain bounds. … My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead try to figure out, ‘What is a sensible solution to this problem?’ And then, having found what I think is a sensible solution, without worrying about doctrinal details, I ask, ‘Is this blocked by some kind of authoritative precedent of the Supreme Court’? If it is not blocked, I … go with the common sense solution.
Translation: I do not feel bound by any judicial doctrine or precedent.
On Magna Carta
I have been extremely annoyed by the fuss being made about Magna Carta. This is the eight-hundredth anniversary of Magna Carta. Magna Carta has absolutely nothing to say to us. The people who talk about Magna Carta don’t understand Magna Carta, don’t understand history, don’t realize it was repealed a couple of years after. It was a power struggle between a bunch of aristocrats and a bunch of kings. The profession is always looking backwards, to the eighteenth century, to old decisions.
Translation: I do not feel bound by any of those ancient, hard-won rights and privileges of Englishmen, like habeas corpus, trial by jury, double jeopardy, etc. They’re so old!
On the Judge’s Oath
It’s funny to talk about the oath judges take to uphold the Constitution, since the Supreme Court has transformed the Constitution in its decisions. The oath is not really to the original Constitution, or to the Constitution as amended, it is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.
Translation: Oath? What oath?
Or, to Sum
Shorter Posner: I am the law, except when constrained by an authoritative precedent of the Supreme Court.
Even shorter Posner: Might makes right.
This man is one of our most respected, and frequently cited, legal minds. What does that say about us?
[Originally published at TheFederalist.com, December 2, 2015. Republished at deanclancy.com.]