Against constitutional theory

New York University Law Review

Volumn 73, Issue 1, 1998, Pages 1-21

  Posner, Richard A ^a,b  

^a U States Ct Appeals Seventh C ^*  (United States)

^b UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032361236     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (55)

1. See Richard A. Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. (forthcoming May 1998).
2. As held in Griffin v. California, 380 U.S. 609 (1965).
3. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective, in R.H. Helmholz et al., The Privilege against Self-Incrimination: Its Origins and Development 181, 203 (1997).
4. See United States v. Virginia, 116 S. Ct. 2264 (1996).
5. See Romer v. Evans, 116 S. Ct. 1620 (1996).
6. See The Federalist No. 78 (Alexander Hamilton); Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Marshall, C.J.) ("Courts are the mere instruments of the law, and can will nothing.").
7. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
8. See id. at 144.
9. On Holmes's position, see Richard A. Posner, Pragmatic Adjudication, 18 Cardozo L. Rev. 1, 2 (1996).
10. See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (Frankfurter, J.).
11. See Lochner v. New York, 198 U.S. 45, 74-76 (1905) (Holmes, J., dissenting).
12. Which I summarize and elaborate in Richard A. Posner, The Federal Courts: Challenge and Reform 304-34 (1996).
13. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 23-25 (Amy Gutmann ed., 1997).
14. See Antonin Scalia, Response, in id. at 129, 138-39. He says, "Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones." Id. at 139. But on his understanding of proper constitutional interpretation, most of the "accepted old principles" were themselves "usurpatious" when first announced, and some of them were first announced within the last few decades on the basis of just the kind of nonoriginalist interpretation that he considers usurpative.
15. Cf. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 75 (1996).
16. The shortcomings of lawyers and judges, even of law professors, as legal historians have been noted often. For recent discussions, citing the earlier literature, see Martin S. Flaherty, History 'Lite' in Modern American Constitutionalism, 95 Colum. L. Rev. 523 (1995); Barry Friedman & Scott B. Smith, The Sedimentary Constitution (Oct. 30, 1997) (unpublished manuscript, on file with author).
17. The shortcomings of lawyers and judges, even of law professors, as legal historians have been noted often. For recent discussions, citing the earlier literature, see Martin S. Flaherty, History 'Lite' in Modern American Constitutionalism, 95 Colum. L. Rev. 523 (1995); Barry Friedman & Scott B. Smith, The Sedimentary Constitution (Oct. 30, 1997) (unpublished manuscript, on file with author).
18. See Learned Hand, The Bill of Rights 30 (1958).
19. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). Criticisms of the article are summarized in Richard A. Posner, Overcoming Law 71-75 (1995).
20. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). Criticisms of the article are summarized in Richard A. Posner, Overcoming Law 71-75 (1995).
21. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 87-104 (1980).
22. Expounded in many places, most recently in his article, Ronald Dworkin, In Praise of Theory, 29 Ariz. St. L.J. 353 (1997).
23. See, e.g., Posner, supra note 18, at 207-14. See id. at 198-207 on the shortcomings of Ely's theory, and Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 Fordham L. Rev. 1269 (1997), on the shortcomings of Dworkin's theory.
24. See 1 Bruce Ackerman, We the People: Foundations (1991).
25. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1166-73 (1993); Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365, 1371-76 (1997).
26. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1166-73 (1993); Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365, 1371-76 (1997).
27. See John Rawls, Political Liberalism 212-54 (1993).
28. See, e.g., Cass R. Sunstein, Legal Reasoning and Political Conflict 35-48 (1996); Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6-10 (1996); Cass R. Sunstein, Judicial Minimalism (Aug. 1997) (unpublished manuscript, on file with author).
29. See, e.g., Cass R. Sunstein, Legal Reasoning and Political Conflict 35-48 (1996); Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6-10 (1996); Cass R. Sunstein, Judicial Minimalism (Aug. 1997) (unpublished manuscript, on file with author).
30. See, e.g., Cass R. Sunstein, Legal Reasoning and Political Conflict 35-48 (1996); Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6-10 (1996); Cass R. Sunstein, Judicial Minimalism (Aug. 1997) (unpublished manuscript, on file with author).
31. "[C]itizens are to conduct their fundamental discussions within the framework of what each regards as a political conception of justice based on values that the others can reasonably be expected to endorse and each is, in good faith, prepared to defend that conception so understood." Rawls, supra note 24, at 226; see also John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).
32. See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703 (1997).
33. 369 U.S. 186 (1962).
34. See Ronald Dworkin, The Bork Nomination, New York Review of Books, Aug. 13, 1987, at 3, 10, reprinted as Bork: The Senate's Responsibility, in Dworkin, supra note 15, at 265, 267, 273.
35. See Ronald Dworkin, The Bork Nomination, New York Review of Books, Aug. 13, 1987, at 3, 10, reprinted as Bork: The Senate's Responsibility, in Dworkin, supra note 15, at 265, 267, 273.
36. 347 U.S. 483 (1954).
37. 410 U.S. 113 (1973).
38. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 Fordham L. Rev. 111 (1993); Isaac Ehrlich & George D. Brower, On the Issue of Causality in the Economic Model of Crime and Law Enforcement: Some Theoretical Considerations and Experimental Evidence, 77 Am. Econ. Rev. Papers & Proc. 99 (May 1987).
39. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 Fordham L. Rev. 111 (1993); Isaac Ehrlich & George D. Brower, On the Issue of Causality in the Economic Model of Crime and Law Enforcement: Some Theoretical Considerations and Experimental Evidence, 77 Am. Econ. Rev. Papers & Proc. 99 (May 1987).
40. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 Fordham L. Rev. 111 (1993); Isaac Ehrlich & George D. Brower, On the Issue of Causality in the Economic Model of Crime and Law Enforcement: Some Theoretical Considerations and Experimental Evidence, 77 Am. Econ. Rev. Papers & Proc. 99 (May 1987).
41. See Ronald Dworkin, Reply, 29 Ariz. St. L.J. 432, 433 (1997).
42. 116 S. Ct. 2264 (1996).
43. Id. at 2269. The Fourth Circuit, in an earlier stage of the case, had based this conclusion on a non-sequitur: the success of women's colleges, which are not military and do not employ the adversative method. See United States v. Virginia, 976 F.2d 890, 897 (4th Cir. 1992).
44. The lower court had found "that VMI's mission can be accomplished only in a single-gender environment and that changes necessary to accommodate coeducation would tear at the fabric of VMI's unique methodology." United States v. Virginia, 976 F.2d at 897.
45. See Johannes Morsink, Was Aristotle's Biology Sexist?, 12 J. Hist. Biology 83, 110-12 (1979).
46. See Kingsley R. Browne, Sex and Temperament in Modern Society: A Darwinian View of the Glass Ceiling and the Gender Gap, 37 Ariz. L. Rev. 971, 1016-64 (1995).
47. I am not arguing that because single-sex restrooms are lawful, VMI should be entitled to exclude women. That would be as illegitimate a use of analogy as the ones that I am criticizing.
48. United States v. Virginia, 116 S. Ct. 2264, 2281 (1996) (footnotes omitted).
49. See, e.g., Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 Yale L.J. 1285, 1289-91 (1992) (explaining that there has been minimal progress in equalization of educational opportunity for black children, and that efforts to integrate schools - predominantly through busing - have been met with widespread resistance, white flight, and ultimate resegregation); Steven Spiegel, Race, Education, and the Equal Protection Clause in the 1990s: The Meaning of Brown v. Board of Education Re-examined in Light of Milwaukee's Schools of African-American Immersion, 74 Marq. L. Rev. 501, 503-07 (1991) (finding principles articulated in Brown problematic when applied to Milwaukee's attempt to improve education of black children).
50. See, e.g., Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 Yale L.J. 1285, 1289-91 (1992) (explaining that there has been minimal progress in equalization of educational opportunity for black children, and that efforts to integrate schools - predominantly through busing - have been met with widespread resistance, white flight, and ultimate resegregation); Steven Spiegel, Race, Education, and the Equal Protection Clause in the 1990s: The Meaning of Brown v. Board of Education Re-examined in Light of Milwaukee's Schools of African-American Immersion, 74 Marq. L. Rev. 501, 503-07 (1991) (finding principles articulated in Brown problematic when applied to Milwaukee's attempt to improve education of black children).
51. 478 U.S. 186 (1986).
52. Sanford Levinson remarks (following Michael Perry) upon the double standard that prevails in discussions of the legitimate scope of judicial reasoning: the nonreligious are permitted to make almost any argument they want in support of the positions they take, but the religious are not permitted to make religious arguments in support of their positions. See Sanford Levinson, Abstinence and Exclusion: What Does Liberalism Demand of the Religiously Oriented (Would Be) Judge?, in Religion and Contemporary Liberalism 76, 79 (Paul J. Weithman ed., 1997).
53. See the summary of polling data in Stephen Zmansky, Colorado's Amendment 2 and Homosexuals' Right to Equal Protection of the Law, 35 B.C. L. Rev. 221, 245-46 (1993).
54. See Posner, supra note 18, at 572; Richard A. Posner, The Economic Approach to Homosexuality, in Sex, Preference, and Family: Essays on Law and Nature 173, 186, 191 n.26 (David M. Estlund & Martha C. Nussbaum eds., 1997).
55. See Tomas J. Philipson & Richard A. Posner, Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective 179-80 (1993).