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An interesting article on the Supreme Court by Richard Posner. Posner is a judge on the Seventh Circuit here in Chicago, a professor at the University of Chicago and generally regarded as one of most influential legal minds of this generation.

The article is longish and may not appeal to the non-lawyer type. Posner argues that the recent gun case, Heller “is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

The typical explanation of why the United States has the longest surviving societal/governmental compact (i.e., the Constitution), is that the Constitution is a “living document.” It is living because it is comprised of those few basic principles that all Americans can basically agree upon and those principles are general enough in recitation that they can be interpreted to reflect the mores of the day.

The necessity of interpreting the Constitution has led to various schools of thought on the proper way to do so. These interpretative schools of thought include strict construction, loose construction, originalism, textualism, judicial activism.

Posner is essentially saying that these interpretations are simply ways for the Justices to reach the end result which they favor. Shocking, right?

I cannot discern any principles in the pattern of the Supreme Court’s constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.


The true springs of the Heller decision must be sought elsewhere than in the majority’s declared commitment to originalism. The idea behind the decision–it is not articulated, of course, and perhaps not even consciously held–may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives’ turn. Another plausible example of payback is the conservative justices’ expansive interpretation of the free-speech clause of the First Amendment to limit regulation of campaign financing.

And so, in recognizing that the majority Justices are merely using whatever means necessary to reach the desired ends, then what ends are actually desirable.

There is an important difference, obvious but often overlooked, between using loose construction to prevent making the Constitution a straitjacket and using it to make the Constitution a straitjacket.


Constitutional interpretations that relax rather than tighten the Constitution’s grip on the legislative and executive branches of government are especially welcome when there are regional or local differences in relevant conditions or in public opinion. The failure to recognize this point (or perhaps indifference to it) was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade. It would be the mistake the Court would be making in the unlikely event that it created a federal constitutional right of homosexual marriage. It is the mistake the Court has made in Heller. The differences in attitudes toward private ownership of pistols across regions of the country and, outside the South, between urban and rural areas, are profound (mirroring the national diversity of views about gay marriage, and gay rights in general, as well as about abortion rights). A uniform rule is neither necessary nor appropriate. Yet that is what the Heller decision will produce if its rule is held applicable to the states as well as to the District of Columbia and other federal enclaves.

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local prefere nce, and social experimentation. A majority of Americans support gun rights. But if the District of Columbia (or Chicago or New York) wants to ban guns, why should the views of a national majority control? Is that democracy, or is it Rousseau’s forced conformity to the “general will”?


This is not to say that there should be no national rights–that Mississippi should be permitted to stone adulterers, or Rhode Island to ban The Da Vinci Code. But the question of whether to nationalize an issue in the name of the Constitution calls for an exercise of judgment; and when the nation is deeply divided over an issue to which the Constitution does not speak with any clarity, and a uniform national policy would override differences in local conditions, nationalization may be premature.

Thus, constitutional interpretation is not about determining what rights are ingrained in the Constitution. It is about what rights nine justices determine that the electorate is not allowed to decide for themselves. What values are to be nationalized and what values are to be left to the laboratories of democracy.

If constitutional decisions are to be determined by the balance between liberals and conservatives on the Supreme Court, the fig-leafing that we find in Heller–the historicizing glaze on personal values and policy preferences–will continue to be irresistibly tempting to the justices, with their large and tireless staffs and their commitment to a mystique of “objective” interpretation. There is no way to purge political principles from constitutional decision-making, but they do not have to be liberal or conservative principles. A preference for judicial modesty–for less interference by the Supreme Court with the other branches of government–cannot be derived by some logical process from constitutional text or history. It would have to be imposed. It would be a discretionary choice by the justices. But judging from Heller, it would be a wise choice. It would go some distance toward de-politicizing the Supreme Court. It would lower the temperature of judicial confirmation hearings, widen the field of selection of justices, and enable the Supreme Court to attend to the many important non-constitutional issues that it is inclined to neglect.

So, “judicial modesty” is the answer? Actually, I think its probably more diagnosis than cure, isn’t it? Is Posner really saying anything at all, other than that the court should nationalize fewer issues? But which issues? Conservatives have their issues which they’d like to see taken from the hands of the electorate. Liberals their own. And these are the issues upon which no quarter can be given. These are the issues that one side or the other thinks are the core principals enshrined in the Constitution.

Ultimately I agree almost 100% with what he’s saying: The Supreme Court has “nationalized” too many issues, thus taking them out of our hands. The best course is for the Justices to refrain from exercising their power.

Unfortunately, he offers no prescription to cure the disease.


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