Every summer at the end of the Supreme Court term, Slate runs a “breakfast table” serving as a sort of year in review for the court. For several years, I’ve been one of the participants in this round-up, along with law professors, lawyers, and legal journalists.
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. What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise. Such compromises frequently involve avoidance of precision, thus allowing all the parties to the compromise to believe that their interests are not being neglected by the majority.
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. The framers of the Constitution were very intelligent and experienced, but they could no more foresee conditions in the 21st century than we can foresee conditions in the 23rd century. 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, recognizing that interpretation so understood is not what we usually understand by the word. If I say “I understand what you just said,” it means that you have successfully communicated to me some idea or proposal, or what have you. But the framers of the Constitution cannot communicate with us regarding issues that they deliberately left vague, probably because they couldn’t agree on how or whether the text of the Constitution resolved the issues. (We know about these differences from the debates between the Federalists and Thomas Jefferson’s Democratic-Republican Party during the early years of the new nation.) 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.
Richard A. Posner