The Constitution Means What the Supreme Court Says It Means
14 Pages Posted: 6 Jan 2016 Last revised: 14 Apr 2016
Date Written: January 3, 2016
Just a few days before the Harvard Law Review published Professor Strauss' Foreword: "Does the Constitution Mean What it Says," where he argued that text and history do not account for the Supreme Court's constitutional decisions, Judge Richard Posner gave a talk in Chicago where he surprised many by saying that he doesn't care what the text of the Constitution says or what people living in the 18th century thought about today's problems. Judge Posner's remarks were a response to a book talk by Professor Randy Barnett who was defending his own "construction zone originalism." Posner explicitly said that he agreed with Strauss' views that the best descriptive account of the Court's decisions is that they represent constitutional common law. Although Strauss downplayed the role of text and history in constitutional decision-making in his Harvard Foreword, he also said that it is "never" appropriate to say that text can be ignored. This essay argues that Strauss is incorrect on that point, that Posner's pragmatic constitutionalism is descriptively accurate and normatively appealing, and that both Strauss' and Posner's views better capture constitutional law than Professor Barnett's faux originalism.
Keywords: constitutional law, originalism, constitutional interpretation, Judge Posner
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