Judges Shall Be As Gods
Richard A. Posner
Harvard University Press, 1995, x + 597 pgs.
To most conservatives, constitutional interpretation is straightforward. The judge's task is to
understand the Constitution as intended by its authors. A judge must not anachronistically
impose his own social philosophy on the document; and the principal complaint against "liberal"
judges is that they commit this sin. Notoriously, for example, the Warren Court preferred its
understanding of Gunnar Myrdal and Kenneth Clark over the legislative history of the Fourteenth
Much of Richard Posner's long and learned volume is devoted to an assault on "originalism."
More exactly, the book's principal target is a general category, "formalism" of which originalism
is alleged to be a species. Formalism resists exact definition; but, roughly, it holds that law is a
fixed body of principles that may be analyzed without the use of other disciplines, especially the
Our author, who is Chief Judge of the United States Court of Appeals, Seventh Circuit, was
earlier incarnation the leading academic advocate of law-and-economics, a doctrine in which he
still devoutly believes. To paraphrase Hume, law-and- economics maintains that "law is, and
ought only to be, the slave of wealth maximization." Holders of this position, as can well be
imagined, do not look on originalism with entire favor. Were one restricted to the text, the
pursuit of wealth might be hindered.
What has Posner to say against interpreting the Constitution as written? His key argument is
"Many provisions of the Constitution...are drafted in general terms. This creates flexibility in the
face of unforeseen change, but it also creates the possibility of alternative interpretations, and this
possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have
any right to exercise discretion" (p. 233). Given an indeterminate text, a judge must choose; and
to choose properly he must weigh consequences.
Judge Posner of course is right that much of the Constitution is in form general: "The
speech," "the equal protection of the laws," etc. But it does not follow from this that these
provisions are indeterminate in meaning. Posner's argument, when pressed, seems to be that
unless we do take the general provisions as indeterminate, we shall be unable to cope with new
conditions. The poor, benighted framers could not possibly anticipate what we know today
especially if we have thoroughly studied Posner's opera omnia.
To make good his argument, Posner needs to give examples of general constitutional
that, if "inflexibly" interpreted, eventuate in disaster; but he fails to do so. In fact, Posner himself
in another context notes an instance that goes strongly against his view, though he fails to draw
During the early years of the New Deal, the Supreme Court used an "inflexible"
parts of the Constitution, e.g., the commerce clause, to strike down key legislation of the
Rooseveltian New Order. Many legal "progressives" maintained that strict construction placed
needed social reform in a straitjacket.
Did the Court do this? In fact, the situation is entirely the reverse: had the Court invalidated
New Deal nostrums, we would nearly all have been better off. Let Posner tell the story: "Many
New Deal programs were aimed at raising prices and wages, and by thus reducing economic
growth and employment programs delayed the recovery from the Depression as did (in all
likelihood) the spirit of restless experimentation and of hostility to business that was
characteristic of Roosevelt's pre- World War II Presidency" (p. 221). Hardly a point for flexible
interpretation, is it?
But has Posner nothing at all to cite as an example of the disasters of originalism? It
that he does indeed have a case in mind: that old warhorse, Brown v. Board of Education. Had
Earl Warren paid attention to the historical context of the Fourteenth Amendment, "a history
which indicates that the amendment had not been understood by its framers or supporters to
require blacks to attend school with whites," he might never have been able to rule segregation
unconstitutional (p. 225, Posner in a footnote cites an unpublished work by Michael McConnell
which challenges this view of the legislative history. But I venture to suggest that Raoul Berger,
whom Posner does not cite, has conclusively shown that the quoted view is correct).
There we have it. Originalism leads to the rejection of Brown; Brown is sacred; therefore,
originalism has been "weighed, and found wanting in the balance." This, I suggest, is the essence
of Posner's case against strict construction.
He berates the legal theorist Herbert Wechsler for criticizing Brown; although a devout
Wechsler found himself unable to arrive at "neutral principles" on which Brown could be
defended. "One might have supposed that the central question in Brown v. Board of Education
was not the scope of some abstract principle of freedom of association but whether racial
segregation of public facilities in the South was intended or likely to keep the blacks in their
traditionally subordinate position" (p. 72).
Perhaps it was; but why is the Supreme Court a roving body to solve social problems? And
must we choose between the preservation of enforced segregation and a "results-oriented"
jurisprudence? Did these exhaust the alternatives in the 1950s and 60s? Posner gives us no
reason to think so.
Posner does however make one effective point about the controversy over Brown. Many
professed originalists defend Brown; and this they cannot with consistency do (unless they read
the legislative history aberrantly). Thus, Robert Bork builds up "an unanswerable case on his
[originalist] terms" against Brown, but "flinches" from accepting the implication of his own
analysis (p. 247). He too wishes to retain Brown.
Of course, Posner does not, as he should, condemn Bork for flinching. His point, to reiterate,
that given Brown as a "sacred cow" (p. 249), we must embrace a judicial philosophy that entails
that the case was rightly decided.
Our author is alert to an objection. Is it not undemocratic for a small group of judges, who
office for life, to impose their conception of the good on the rest of us? Unlike Bork, Posner does
not flinch. He responds, what is so good about unlimited democracy? "Liberalism is in tension
with democracy. Democracy is a means not only of dispersing political power and thus of
protecting the private sphere against invasion by the public sphere, but also of enabling people to
enforce their dislike of other people's self-regarding behavior" (p. 25).
Further, democracy often fails adequately to reflect the preferences of the majority. A "large
amorphous majority" may be at the mercy of a cohesive special-interest group, which can often
"use the political process to transfer wealth to itself" (p. 203). And representatives often do not
carry out the wishes of the electors: "They have their own interests, selfish and otherwise" (p.
Posner's challenge to unlimited democracy is effective; but his style of jurisprudence remains
vulnerable to a variant of the objection from democracy. We may simply ask: why should an
coterie of judges rule over us? This objection does not assume anything at all about democracy;
but it requires an answer. Preoccupied with his view that judges should decide cases by their
consequences, he fails to ask what consequences justify the existence of a Supreme Court at all.
I have so far been unjust to Judge Posner; and this, in a review of a work of legal theory, will
never do. His criticism of originalism is not freestanding but is embedded in a larger philosophy,
pragmatism, which supports his emphasis on consequences.
On second thought, I withdraw my admission of injustice. Pragmatism as professed by our
is monumentally silly. The "support" it offers his jurisprudence is, in Lenin's phrase, "the support
which a rope gives a hanging man."
Posner's variety of pragmatist is "skeptical about claims that we can have justified
having arrived at the final truth about anything. Most of our certitudes are simply the beliefs
current in whatever community we happen to belong to" (p. 5). We accept such facts as the
existence of the external world because it would be disorienting for us to dislodge them.
But even the most unshakable facts are not certain. "One can only pretend" to doubt that the
world exists independently of oneself and similar bedrock beliefs. "Yet while unable to doubt
them in the sense of being willing to act on our doubts, we can accept intellectually the
possibility that they will someday be supplanted by fundamental beliefs equally unshakable and
transient" (p. 5).
I freely confess that I am entirely unable to grasp how belief in the external world might be
"supplanted." To put words together in meaningless strings, as Posner does here, hardly qualifies
as philosophy. Let us pass by Posner's effusions "in silent contempt," as Dante says.
Posner reads remarkably widely; but his reading is not always accurate. Cardinal Bellarmine
not refuse to look through Galileo's telescope; or if he did, history does not record it (p. 344).
Pascal did not maintain that belief is "entirely voluntary" (p. 502); his discussion of the wager
explicitly takes account of the involuntary aspect of belief. The radio commentator Dennis Prager
is not a rabbi (p. 573). None of the construals Posner offers for "bounded rationality" captures
what Oliver Williamson means by the term (pp. 435 36). Nelson Goodman's concept "grue" is
not a metaphor (p. 524). But the problems of Posner's book go beyond details. The whole
structure is rotten.