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11/09/2015

Josh Blackman on Judge Posner on Constitutional Interpretation
Michael Ramsey

Josh Blackman reports on Judge Richard Posner's comments at the  Loyola Constitutional Law Colloquium on Randy Barnett's new book Our Republican Constitution: Securing the Sovereignty of the People.

Among other things, Posner said he was not interested in the text or history of the Constitution, does not think that the 14th Amendment guarantees Birthright Citizenship. He adds that he first tries to seek a “sensible” solution without concern for precedent, and then checks if precedent “blocks” the sensible solution.

Some excerpts:

On the value of text and history:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

On the 7th Amendment:

There are things that are in the text of the Constitution that are absurd. One is the idea that if the matter in controversy is at least $20, you have the right to a jury trial. That is absurd. $20 in the 18th century meant something very different than in the 21st century. What the Supreme Court should say when people bring jury cases for $20 is that provision is archaic and will not be enforced.

On birthright citizenship:

Another example is the controversial provision recently being discussed is the 14th Amendment is birthright citizenship. What about these foreigners come here–pregnancy tourists–who want to have their child born in the United States, so he will have refuge if things go bad in his country. But I don’t think that is a necessary interpretation. I’m perfectly happy with these people, I don’t care. Doesn’t bother me in the slightest. But I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizens. That is what they meant. They didn’t want a southern state to say “no more slaves, but children of slaves, citizens, no.” That’s what they were worried about. They weren’t worried about tourist pregnancies.

As a quibble on the last point, I think the Fourteenth Amendment's framers likely were familiar with the 1845 case Lynch v. Clarke -- basically a "tourist pregnancy" case holding that the child born in the U.S. to non-citizens was a U.S. citizen -- and understood that the Amendment constitutionalized that result.  Nonetheless. it's likely right that the framers did not think about the situation of children born to people not admitted to the country legally (the parents in Lynch were legally present).  But again this is an illustration of original meaning distinguished from original intent.  The question, for most modern originalists, is not what the Amendment's framers specifically had in mind (what Judge Posner thinks is relevant) but what the language they enacted meant at the time of enactment.

Also ( I can't help adding), if Judge Posner really thinks text and history are unimportant (point #1 above), why does it matter to him what the framers of the Fourteenth Amendment thought (or wrote) about birthright citizenship?  Apparently the argument is: "What the framers meant is irrelevant, plus they supported me."  If one really believes (and thinks one's audience believes) the former, why bother with the latter?