Posner apologizes, says his controversial comments were about a 'living Constitution'

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Judge Richard Posner is apologizing to readers who took his comments on the Constitution to suggest he doesn’t think the Constitution has any role to play in interpreting the law.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, clarified his comments in a new post at Slate, the Wall Street Journal Law Blog reports. Posner says he was talking about the idea of a “living Constitution” in which judges give dynamic meaning to the Constitution through interpretation of vague phrases.

In his original Post at Slate, Posner wrote: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation. ….

“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments (including the 14th), do not speak to today.”

In his new post at Slate, Posner writes:

“Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law—that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law.

“That was not my intention, and I apologize if carelessness resulted in my misleading readers. … Many [constitutional] provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise. …

“But the vagueness of the original Constitution and Bill of Rights, both being 18th-century creations, limits the ability of modern judges to derive results in modern constitutional cases from the text of the original Constitution and Bill of Rights, and indeed from many of the later amendments to the Constitution as well, such as the 14th Amendment with its much-debated due process, equal protection, and privileges and immunities clauses. …

“So the choice for the modern judge is: dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems, or decide many constitutional cases by broad interpretation of the Constitution’s vague provisions. …

“Today’s judges are left to do the best they can, within the boundaries they perceive in phrases such as ‘due process,’ or ‘cruel or unusual.’ Their efforts in the aggregate create ‘constitutional law’ based on what is sometimes called the ‘living Constitution.’

“That’s all I meant to say, and it is by no means original with me. I regret not having been clearer.”

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