[detbuch]

Some comments (in red type) on the article by Posner (black type) in the link on reasons for or against originalism that wdmso provided.


Judge Richard A. Posner on Originalism and Pragmatism
Excerpts from Overcoming Law (1995) ("What Am I? A Potted Plant?" and "Bork and Beethoven")
Republished with permission of the author.

*****Politically, I feel more governed than self-governing, (he should since government has progressively become more pervasive in our lives than it was before judges kept agreeing to transfer power and rights from the people to the government) and this is one reason why I think more warmly of limited government than of popular government. Does he think more warmly of it than Scalia did? From Posner's idea that judges should exercise more discretion than Scalia thought they should, it seems to me that his idea opens the door to judges who wish to give government broader powers to implement the judge's notion of equity and justice, or some personal higher ideal, or personal ideology. And exactly that has been happening since Courts adopted so-called nonoriginalst theory of interpretation.

In considering whether to shrink what are now understood to be constitutional safeguards to the slight dimensions implied by a literal interpretation of the Constitution, His amazing flourish of legalese is difficult enough to follow even without this kind of backstep. He says, or implies, a bit further on that "general provisions" (slight dimensions) are more lasting and workable than "specific provisions" (a more expansive charter of liberties) we should be careful to have a realistic, not an idealized, picture of the legislative and executive branches of government, which would be even more powerful than they are today if those safeguards were reduced.

He may not like literal interpretation, but, actually, the framers (the original ones, not the current revisionist judges) were very realistic about the power being invested in each branch of government. That's why they insisted on separation of powers to prevent too large or absolute power in any branch. A literal interpretation of the Constitution would prevent such accumulation of power in one branch. The nonoriginalist method of interpretation which really picked up traction under the FDR Courts and has continued in varying degrees up till now has given a nearly absolute power to the Court by enabling it to adjudicate by personal opinion rather than through "literal" interpretation. This, in turn, has given the Court unchecked ability to give powers to the legislative or executive branches in order to advance the Justices ideology. Maybe that's why he felt, in 1995, more governed than self-governed. And the Federal government has gained, through judicial "discretion," much more power since then. Of course, the nonoriginalists believe this has given the people more liberty than they had under the old "literal" interpretations.

The framers of a constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, (Which is what (general provisions) the original Framers did, except for the Bill of Rights which the wiser ones did not want to include, but were compelled to in order to ratify) thereby allowing substantial discretion to the authoritative Putting on black robes does not make one "authoritative" in the sense that your smarter and wiser than the society from which you came, and it certainly doesn't give you the power to do someone else's job such as creating law. interpreters, who in our system are the judges. ("Interpreters" not creators.) The U.S. Constitution is a mixture of specific and general provisions. Many of the specific provisions have stood the test of time well or have been amended without much fuss. This is especially true of the rules establishing the structure and procedures of Congress. Now he will leave the meat of the Constitution which is the enumerated powers of the Federal Government, and what the Constitution is really about, and not ambiguous, and move on to the Bill of Rights--Most of the specific provisions creating rights, however, have fared poorly. Some have proved irksomely anachronistic-for example, the right conferred by the Seventh Amendment to a jury trial in federal in all cases at law if the stakes exceed $20. (I would suppose a textualist would refer not only to what the words meant when the Constitution was written, but what the value of $20 meant then. Much more that it is worth today. Others have become dangerously anachronistic, such as the right to bear arms. (Well, no, they have not become anachronistic. That's his personal opinion. Of course, he qualifies it with "dangerously." He knows that anachronism cannot, nor should not, be abolished. But if in their opinion it's dangerous, then he thinks it should be up to nine (or five actually) people with black, authoritative robes to abolish. Not by literal interpretation of the Constitution since that would be erasing part of the Constitution, not by will of the people, since, I guess, they are not authoritative, not even by Congress, which, I guess is also not authoritative. But by the authoritative "discretion" of five black robes. Some have turned topsy-turvy, such as the provision for indictment by grand jury. The grand jury has become an instrument of prosecutorial investigation on, rather than being the protection for the criminal suspect that the framers of the Bill of Rights expected it to be. Well, gee, so he's not for judicial "discretion" in this case? If the Bill of Rights had consisted entirely of specific provisions, it would no longer be a significant constraint on the behavior of government officials. Right. As he says in the second sentence of this paragraph, if it had so consisted, it would have been doomed to rapid obsolescence.

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, (The Constitution is not about circumstances. For the most part, it is explicitly, not ambiguously, about who has certain powers. Of course, if a Judge feels he has the "discretion" to allow a branch to assume the power of another branch, he is allowed to actually create an ambiguity. But clauses that might be considered ambiguous if they stood alone, are clear in context and in the structure of the text, as well as actual explanations by the Framers outside of the text. Of course, they can be made to seem ambiguous by the "discretion," of judges who ascribe meanings to the text which are not in the text. So thusly promote what such judges consider good consequences.) requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat," (The Constitution, not differing from all legal writing, does not use colloquial figures of speech.) one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly," or, "Read me narrowly." The decision to do one or the other must be made as a matter of political theory and will depend on such things as one's view of the springs of judicial legitimacy and the relative competence of courts and legislatures in dealing with particular types of issue. This paragraph, like most of his, is so full of ambiguity and linguistic (but high sounding) gibberish that it sort of floats without landing anywhere. If the Constitution must be read through a "matter of political theory," then why not read it through the matter of the political theory of those who wrote it. I guess that would be too originalist. No, let's sift it through the matter of political theory of nine black robes. But what if they have different matters of political theory? Wouldn't that create ambiguity? And who's to say that somebody's "discretion" is better than somebody else's?

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Read narrowly, this just means that the defendant can't be forbidden to retain counsel. If he cannot afford counsel, or competent counsel, he is out of luck. Read broadly, it guarantees even the indigent the effective assistance of counsel. It becomes not just a negative right to be allowed to hire a lawyer Isn't that actually a positive right? but a positive right to demand the help of the government in financing one's defense if one cannot do it oneself. Either reading is compatible with the semantics of the provision, but the first better captures the specific intent of the framers. When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. The framers wanted to do away with this prohibition. But, more broadly, they wanted to give criminal defendants protection against being railroaded. When they wrote, government could not afford, or at least did not think it could afford, to hire lawyers for indigent criminal defendants. Moreover, criminal trials were short and simple, so it was not completely ridiculous to expect a lay person to be able to defend himself competently from a criminal charge without a lawyer if he couldn't afford to hire one. Today the situation is different. Not only can the society afford to supply lawyers to poor people charged with crimes, but modern criminal law and procedure are so complicated that an unrepresented defendant is usually at a great disadvantage. So where in the Sixth Ammendment does it say, literally or discretionally, that the government can't request pro-bono counsel?

***** The liberal judicial activists may be imprudent and misguided in their efforts to enact the liberal political agenda into constitutional law. But it is no use pretending that what they are doing is not interpretation but "deconstruction," deconstruction is a form of interpretation. not law but politics, Unfortunately, it becomes law, from the bench, and to deny that it is politics, especially since Judges are chosen for political views, is the idealism that Posner abjures above. just because it involves the exercise of discretion and a concern with consequences and because it reaches results not foreseen two hundred years ago. It may be bad law because it lacks firm moorings in constitutional text, or structure, or history, or consensus, or other legitimate sources of constitutional law, or because it is reckless of consequences, or because it oversimplifies difficult moral and political questions. But it is not bad law, or no law, just because it violates the tenets of strict construction.

Strict construction and originalism are different labels. Even Posner is a bit of an originalist, whatever that is. The labels are too pedantic and restrictive. And they create a fog of authoritative specialization. Something that no Joe Sixpack should be able to comprehend. Personally, I think it's BS. As a common citizen, I find it absurd that Judges can decide not by law, but by their opinion of what the consequences of their decisions will be. The notion that they have some higher power to know the future, as Spence would say, doesn't pass the smell test.

The idea that legal text is "interpreted" by the personal eye of the reader smells like the very ambiguity that so-called nonoriginalists think is such a problem. To treat legal documents like creative literature is contrary to the reason to create law. Creative literature inspires a variety of interpretation. And that doesn't lead to bad consequences. Or even good ones. A short story I wrote long ago for a creative writing class, when it was critiqued for class discussion, evoked different "interpretations" from different readers. Some way off from what I intended. But most were so complimentary that I was reluctant to poo-poo them. For that reason, I suppose, most creative artists don't object to wild speculations about what their work "means." Especially if it makes their stuff look good. The death of one of the Eagles band inspired me to google and listen to their stuff again and to read some interviews with them. My favorite song, Hotel California, inspired lot's of interpretation, but the writer of the song smiled when the interviewer relayed some interpretations, and the songwriter gently said that the meaning was quite different. But that's okay for artists . . . as long as you like their work.

Law requires consistency, predictability, and specificity. It is not a good consequence for law, no matter how complimentary Judges are of it, if by their discretion they wildly and beautifully speculate, "interpret" to achieve, in their opinion, what is good rather than applying the law as written. Such fanciful "interpretation" nullifies and destroys the law. It doesn't elevate, compliment or evolve it. It would be more honest to quit legal pretense, set the law aside, and decide as a higher authority who knows best. In their written arguments they can use high flown language to describe how and why they arrived at their decision and not bother to mention articles, sections, statutes, or legally binding texts.

Except for the Bill of rights, which was an afterthought and may have been more destructive of the People' rights than of preserving them, the Constitution is most importantly a manual of powers and duties of the Federal Government and to which of its three branches they are allocated . Which is why an originalist like Scalia believed it is more about WHO was responsible for the legislation, execution, and adjudication of law than WHAT the law is. There is little, if any, ambiguity in that. And as for the overriding importance of "consequence," it is the very idealism that Posner eschews, as well as hubris, to claim a judicial discretion for SCOTUS Judges which allows them to judge as some higher, more competent authority on consequence than the legislators and the people those legislators represent. As if the Judges possessed some greater purity and knowledge.


From "Bork and Beethoven" This section was too long and boring and about one man's, Bork, opinion to waste time on.