Posner on Originalism, Founders' Beliefs, and Flag Burning
Judge Posner's separate opinion yesterday in the Hively v. Ivy Tech case at the Seventh Circuit has gotten significant attention for Posner's open embrace of taking some of the "burden of updating old statutes" away from Congress. I wanted to focus instead on two particularly bad mistakes Posner makes in dismissing originalist interpretation.
First, Posner mischaracterizes originalism as requiring the adoption of all of the framers' beliefs:
A diehard 'originalist' would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute.
Virtually every originalist, however, distinguishes meaning from application--as I would put it, textually-expressed sense from tangible reference in the world. Virtually every originalist other than the late Raoul Berger would therefore limit the binding force of "what was believed in 1964" to those beliefs relevant to meaning--founders' analytic judgments, not their synthetic judgments, as I have put it. What was believed about the relevant populations of Maryland and North Carolina in 1787 is not binding today in interpreting Article I, section 2, clause 3: the original meaning fixes only a function from possible worlds to outcomes, and we must determine our actual possible world and then plug it into that function to determine constitutional (or statutory) requirements today. In December, I pointed out that Posner and his co-author Eric Segall have steadfastly refused to make this distinction (or acknowledge that originalists make it, or pay attention to the way in which they make it). As I explained then, "the relevance of present facts does not entail the irrelevance of historical facts." Posner's continuing insistence on attacking a strawman version of originalism tells us something significant about his ability to respond to the genuine article.
Second, Posner makes a bad historical blunder in one of his attempted reductio ad absurdums of originalism. At the oral argument in Hively, Posner brought up the case of interracial marriage, and I noted at the time that he seemed not to have yet encountered David Upham's work on the subject (presented at the 2014 Originalism Works-in-Progress Conference). Posner does not press the interracial-marriage reductio in his opinion yesterday (perhaps because his clerks or other judges told him about Upham's work, perhaps for other reasons), but he does mention the issue of flag burning, which Posner also brought up at oral argument. He writes, without citation of any kind,
Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.
When Posner says "there is no indication" that the First Amendment's original meaning included non-verbal communication, he may mean to refer only to the briefs in the case, which of course concern Title VII, not the First Amendment. But it would not take much Googling to find Eugene Volokh's nicely-titled article from eight years ago, Symbolic Expression and the Original Meaning of the First Amendment. Posner said famously last summer that "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation." He shortly later issued a caveat that he rejected common-law constitutionalism, but without explicitly embracing the importance of spending a few moments verifying historical claims about the Constitution before inserting them into F.3d. It would be good to see a fuller mea culpa from Judge Posner on this issue. It is distressing to see judges resolving important social issues while ensconced in a cognitive bubble so well-insulated from scholarship.