Posner first talks about the challenge of constitutional interpretation and how he believes that the entire body of constitutional law was created with free interpretation of the Constitution.

Question: What is the challenge of constitutional interpretation?Richard Posner:    Well the latitude is complete. 

If you actually read the Bill of Rights and the Fourteenth Amendment, some of the provisions are precise.  They are the ones that are the real embarrassment, right?  The Seventh Amendment says that you’re entitled to a jury trial in any civil case.  I mean it excludes an injunction case, but any civil case where the amount in controversy is more than $20.  Well that’s ridiculous.  That’s $20 in 18th century terms.  It’s an embarrassment, right?  It results in entitling people to jury trials in tiny federal cases, so it’s ridiculous.  But it’s hard to get around.  Then there are provisions which also are embarrassingly precise. 

So the Supreme Court has just taken the Second Amendment right to have a gun. So if you read the Second Amendment literally, the right to bear arms, you know, it seems pretty broad.  But the courts traditionally have kind of ignored that.  Now I don’t know what the Supreme Court will do.When you have a constitutional provision that’s, you know, more than 200 years old – if it’s very precisely stated, it’s likely to fall, likely to bear no relation to contemporary need.  That’s a problem, and you don’t know what what to do. 

I’ll give you an example.  I was like, not in the Bill of Rights, but in the body of the Constitution, it says that Congress can create and fund and so on an army and a navy.  But there’s no reference to an air force, right?  So there’s no problem in simply having the army and the navy having an aviation arm.  That’s no problem, weapons.  But to create an air force as a separate branch of the armed services is not actually authorized in the Constitution, but that was just ignored.  They created an air force.  No one minds.  So some provisions are simply ignored. 

The other provisions – the ones that are vague – are simply given a modern meaning.  And even Justice Scalia accepts that. 

So the Eighth Amendment forbids cruel and unusual punishments.  So if you were a real originalist you’d say, “Well let’s look at the 18th century and what was considered cruel and unusual.”  And one of the things that wasn’t considered cruel and certainly wasn’t unusual was public flogging.  But Justice Scalia said he believes that no, public flogging would today violate the Eighth Amendment. 

And the Sixth Amendment creates a right to counsel in criminal cases.  Well it’s perfectly clear historically. It’s also pretty clear from the text that all they meant by that was you could hire a lawyer in a criminal case.  Nothing about the state, the government paying for a lawyer if you couldn’t afford one or anything like that. 

Or the Fifth Amendment’s self-incrimination clause.  It’s quite clear from the text and from the history that they couldn’t force a person in a trial or some other, you know, preceding which he’s testifying to incriminate himself.  But that didn’t mean they couldn’t force him to confess outside the trial and then use that in some fashion in the trial. 

So almost the entire body of constitutional law was created by the Supreme Court justices by free interpretation or no interpretation of the Constitution just using the Constitution as a jumping off point.  Now clearly when you get to the sex cases, like the abortion case. I mean you can take the word like “liberty” and say, “Oh yeah, liberty, sex.”  But that doesn’t have anything to do with 18th century thinking or with anything in the text except words are so vague they can be applied to anything that bothers you, you can say it infringes liberty. 

So the text doesn’t impose a limit.  Precedent doesn’t impose a limit.  I mean it’s obvious something circular.

Supreme Court justices make up some principle.  Like they say, for example, that you need a warrant to search a person’s home.  Actually you read the Fourth Amendment, there’s nothing about requiring a warrant.  The Fourth Amendment limits warrants, because the framers of the Constitution were concerned about warrants.  If the search was conducted pursuant to a warrant, it gave the searching officer immunity from a suit.  So they didn’t like warrants, but the Supreme Court turned that on its head and said, “You need a warrant.”  So the fact that they said that, you can say, “Oh well that’s a precedent.  Now if judges follow that, they’re just applying the law.  They’re not making anything up.”  But they’re implying something which is itself made up by judges.  And the Supreme Court is not bound by its precedence.

Or it can distinguish them to death.  It can distort what they say.  So they have a complete free game, except for public opinion which might precipitate a constitutional amendment.  So there are some things they can’t do.  But that’s the only real limit. 

Now at our level, we have a freedom in areas where the Supreme Court hasn’t spoken.  But we do obviously have to follow the Supreme Court.  Otherwise they’ll reverse us and humiliate us, so we have to follow the Supreme Court.  So we’re more like real judges cause we have more constraints on us than the Supreme Court does.

Recorded on: Nov 21, 2009.