Judges Shall Be As Gods

OVERCOMING LAW
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 Amendment.

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 social sciences.

Our author, who is Chief Judge of the United States Court of Appeals, Seventh Circuit, was in an 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 this: "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 freedom of 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 provisions 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 the connection.

During the early years of the New Deal, the Supreme Court used an "inflexible" interpretation of 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 more 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 transpires 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 liberal, 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 why 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 own [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, is 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 hold 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 and 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. 203).

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 elite 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 oracle 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 confidence in 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 did 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.