The emiment judge (7th Circuit) and scholar Richard Posner reviews a new book on Lincoln’s Constitution, which provides an ideal platform for him to display his well known fondness for a pragmatic approach to constitutional interpretation. (Posner concludes that the book’s pragmatic defense of Lincoln’s bypassing constitutional niceties — suspending habeas corpus, flouting judicial orders, etc. — wasn’t pragmatic enough.)
The following passage nicely reveal’s Posner’s approach:
“Pragmatism” for these purposes may be defined as an overriding concern for the practical consequences, long-term as well as short-term, of constitutional principles — as distinct from a more lawyerly insistence that such principles be “logically” derivable from orthodox legal materials, like the constitutional text, its understanding by the text’s authors or ratifiers and previous judicial decisions from which rules applicable to new cases can be deduced. The pragmatic approach is forward-looking, asking what the decision in a case will do for us, the living. The orthodox lawyer’s approach is backward-looking, asking what outcome would have the longer or better legal pedigree — that is, would correspond more closely to some authoritative enactment or pronouncement in the past.
The greater the practical consequences of a legal principle or decision, the more attractive the pragmatic approach is. That makes it a natural approach to take to constitutional law….
This is not the place, and I am not the person, to launch a long discussion into the perils of pragmatism, and thus I will limit myself to making only one point here. I think it is fair to observe, based on the passage just quoted, that the opinions of Posnerian pragmatist judges derive from what can only be described as political judgments. The quoted passage, after all, also describes precisely how legislators and executives go about making decisions.
But if that is so, what is the point of empowering judges to make them? Aren’t the overtly (more overtly?) political branches of government more capable of making political judgments? Why even go to the bother of having a constitution if it allows majorities to do pretty much whatever they want? On the other hand, if one believes that the nature and purpose of a constitution is to ensure that politics is or should be constrained by some fundamental principles, then it does make some sense to empower an independent judiciary.
UPDATE (Aug. 27) – Randy Barnett, one of the Volokh Conspirators, has a superb post on the value of a written constitution that makes a number of points I would like to have made here.
When debating the creation of a new nation after the end of the Revolutionary War, many thought America should have a King, a sort of Constitutional Monarch, with certain broad powers of his own but a parliamentary body to check his power, mostly with the power of the purse.
This is how we got a President in the first place. Although he’s not the King some wanted, that was the general idea.
Well, our Presidents are far more populist now than they ever were 200 or even 100 years ago.
Yet somehow I begin to think that the Supreme Court now fills that autocratic function.
Bad thing? Good thing? Both and neither? Either way, it seems to be what we have, and not much to be done about it.