Posner 1998 Against Constitutional Theory

Uses ignorance as a call to inaction by judges. Absent certainty "proven "clear beyond a reasonable doubt", make no changes.

Deflect discussion from the goals of government (Preamble to the Constitution) to social science research, such as it is.

Nothing pretentious enough to warrant the name of theory is required to decide cases in which the text or history of the Constitution provides sure guidance.
Somewhat more difficult interpretive issues ... can be resolved pretty straightforwardly by considering the consequences of rival interpretations.
The big problem is not lack of theory, but lack of knowledge--lack of the very knowledge that academic research, rather than the litigation process, is best designed to produce. [emphasis added]
If even the experts know very little about education, ... this implies that we should welcome continued experimentation and diversity. [THE CRUX no change until proven "clear beyond a reasonable doubt." See first quote from Thayer above.]
[Romer v. Evans] Ignored are the questions that an ordinary person, ... would think central: why there is hostility to homosexuality and whether the challenged amendment was a rational expression of that hostility. Okay to rationally express hostility? What targets are acceptable? Blaine Amendment (Catholics), etc.]
... to suppose that securing equality for homosexuals is part of the meaning of the Equal Protection Clause is equally a leap of faith. [Equal Justice Under the Law]
In any event, most Americans, whether religious or not, dislike ... and in particular do not want their children to become .... They are not sure whether ... is acquired or innate, but, unconvinced that it is purely the latter, they worry about their children becoming ... through imitation or seduction. [Posner replaces "..." with "homosexual". Choose your group.]

2023-10-11: Posner Against Constitutional Theory 1989

• Introduction
• Constitutional theory, as I shall use the term, is the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States.
• Constitutional theorists are normativists; their theories are meant to influence the way judges decide difficult constitutional cases; ....
• Constitutional theory that is strongly influenced by moral theory has additional problems, as I have discussed recently and will not repeat here. [See The Problematics of Moral and Legal Theory (PDF)]
• Nothing pretentious enough to warrant the name of theory is required to decide cases in which the text or history of the Constitution provides sure guidance.
• Somewhat more difficult interpretive issues ... can be resolved pretty straightforwardly by considering the consequences of rival interpretations.
• The reason is that constitutional theory has no power to command agreement from people not already predisposed to accept the theorist's policy prescriptions.
• [serious problem] But as a result, constitutional theory, while often rhetorically powerful, lacks the agreement-coercing power of the best natural and social science.
• An even more serious problem is that constitutional theory is not responsive to, and indeed tends to occlude, the greatest need of constitutional adjudicators, which is the need for empirical knowledge, .... [emphasis added]
• I know that just getting the facts right can't decide a case. There has to be an analytic framework to fit the facts into; without it they can have no normative significance. Only I don't think that constitutional theory can supply that framework.
• The big problem is not lack of theory, but lack of knowledge--lack of the very knowledge that academic research, rather than the litigation process, is best designed to produce. [emphasis added]
• I The History and Varieties of Constitutional Theory (4)
• The problem in political theory to which constitutional theory is offered as a solution is that our judicially enforceable Constitution gives the judges an unusual amount of power.
• James Bradley Thayer ... urged courts to enforce a constitutional right only when the existence of the right, as a matter of constitutional interpretation, was clear beyond a reasonable doubt. [See The Origin and Scope of the American Doctrine of Constitutional Law (PDF)]
• He thought, in other words, that the erroneous grant of a constitutional right was a more serious error than the erroneous denial of such a right, ....
• ... the "outrage" school of constitutional interpretation, ... [Thayer, Holmes, Cordozo, Frankfurter] [emphasis added]
• But I cannot pretend that outrage or even self-restraint furnishes much in the way of guidance to courts grappling with difficult issues.
• [originalism] Hamilton-style formalism now has a defender in Justice Scalia. But he lacks the courage of his convictions. Indeed he has offered little by way of justification other than bromides about democracy.
• A further drawback to Scalia's approach is that it requires judges to be political theorists, so that they know what "democracy" is, and also to be historians, because it takes a historian to reconstruct the original meaning of centuries-old documents. [See The Sedimentary Constitution]
• ... Learned Hand's argument that the Bill of Rights pro- vides so little guidance to judges that it ought to be deemed (largely) nonjusticiable, ....
• ... Herbert Wechsler's prompt riposte that constitutional law can be stabilized by judicial evenhandedness, what he called "neutral principles," soon recognized as merely princi- ples and since principles can be bad as well as good, Wechsler's riposte failed. [See Toward Neutral Principles of Constitutional Law]
• ... John Hart Ely's principle of "representation reinforcement" and Ronald Dworkin's principle of egalitarian natural justice. These are substantive political principles, and they founder on the authors' lack of steady interest in and firm grasp of the details of public policy. Democracy and Distrust
• Lessig argues that just as a good translation is not necessarily a literal one, ... turns the tables on Scalia by showing that originalism is compatible with what Scalia would think an impermissi- ble flexibility of interpretation. [See Fidelity in Translation and Fidelity and Constraint]
• Rawls ... judges in interpreting the Constitution should confine themselves to what he calls "public reason," ... would confine judges to a level of generality so void of operational content as to deny them the tools they need to decide cases.
• Sunstein [minimalism] pointing out that people often converge on the resolution of a particular issue though incapable of agreeing on the principles that determine that resolution.
• The decisions that Sunstein commends are minimalist when compared to hypothetical decisions holding that all governmental discrimination against homosexuals is unconstitutional ....
• But from another standpoint they are uninformed adventures in judicial activism; and that is the view I shall be defending.
• II Toward a New Approach (11)
• I would like to see an entirely different kind of constitutional theorizing.
• It would set itself the difficult ... task of exploring the operation and consequences of constitutionalism.
• It would ask such questions as, what difference has it made for press freedom and police practices in the United States compared to England that we have a judicially enforceable Bill of Rights and England does not? [many more questions appear in the text]
• [VMI and Romer] What these cases illustrate is that the Court does not base its constitutional decisions on fact.
• ... the Court ignored the possibility that our ancestors' false beliefs about women, whatever the motivation, were the best interpretation of the then-existing scientific knowledge .... [Relevance?]
• Within each sex, there is a distribution of characteristics, and the two distributions, the male and the female, overlap.
• It could be argued that these excep- tional women should be given a chance.
• But there are two objections.
• First ... If only a minute percentage of women, relative to men, are qualified ... consideration of women's applications would yield few benefits. [Paid applications. Hold athletic competitions at each high school.]
• Second, a concern with the consequences of mixing the sexes in the unusual setting of a military academy is ... bound up with a desire to limit sexual contact between young people and to tailor education to the difference in life roles between men and women ....
• The issue ... is whether excluding women from VMI is likely to do more harm to women ... than including them would do to the mission of training citizen-soldiers. [econ-view? Is Posner famous for this?]
• What I do concede is that the Court could not actually have weighed the harm to women from exclusion against the harm to VMI's educational program from their inclusion. The data are missing. The fault, in part anyway, lies with constitutional theory ....
• If even the experts know very little about education, ... this implies that we should welcome continued experimentation and diversity. [THE CRUX no change until proven "clear beyond a reasonable doubt." See first quote from Thayer above.]
• Brown v. Board of Education of Topeka (1954) is increasingly considered a flop when regarded as a case about education ... [addressed a single aspect of the problem, not all aspects. Uniform school funding?]
• The majority opinion in Romer finds, sensibly enough, that the constitutional amendment under challenge, which barred local governments from forbidding discrimination against homosexuals, was motivated by hostility toward homosexuality.
• The Court then holds that hostility is not an adequate justification for treating one class of people differently from another. [See Lukumi regarding animus in city regulations]
• Ignored are the questions that an ordinary person, ... would think central: why there is hostility to homosexuality and whether the challenged amendment was a rational expression of that hostility.
• ... to suppose that securing equality for homosexuals is part of the meaning of the Equal Protection Clause is equally a leap of faith. [Equal Justice Under the Law]
• In any event, most Americans, whether religious or not, dislike ... and in particular do not want their children to become .... They are not sure whether ... is acquired or innate, but, unconvinced that it is purely the latter, they worry about their children becoming ... through imitation or seduction. [Posner replaces "..." with "homosexual". Choose your group.]
• Hostility to homosexuals is plainly a different phenomenon from anti-Semitism and has to be analyzed on its own terms, which the Court has refused to do.
• My point is not so much that Romer and the VMI case were decided incorrectly as that the decisions are so barren of any engagement with reality that the issue of their correctness scarcely arises.
• But this raises the question of what the courts are to do in difficult constitutional cases when their ignorance is irremediable, ....
• Those judges who believe ... in judicial self-restraint ... will consider ignorance of the consequences of a challenged governmental policy that is not completely outrageous a compelling reason for staying the judicial hand in the absence of sure guidance from constitutional text, history, or precedent.