Thanks to Ed Whelan for pointing us to that TNR piece by Richard Posner about the Heller ruling. I agree with Ed that the article is slapdash in its inconsistent use of the phrase “loose construction,” first praising it as the “reigning theory of legislative interpretation in the eighteenth century,” and therefore the truest form of originalism, then criticizing Justice Scalia’s opinion in the D.C. case for being an example of “loose construction”–just after also criticizing it for being “narrow originalism.” Judge Posner’s contradictions make your head spin.
Unlike some of Posner’s critics, I see some merit in what he has to say about the Second Amendment. But one’s confidence is not inspired by the judge’s historical errors and intellectual sloppiness. For a minor historical error, notice that Posner refers to “the child-rapist case of just a few weeks earlier” than Heller–but the Kennedy v. Louisiana ruling to which he alludes was decided just the day before. For a major historical error, see this:
Just as when the Supreme Court, in 1947 in Adamson v. California, decided in the teeth of the language of the Fourteenth Amendment that the amendment “incorporates” the Bill of Rights, an exercise of judicial discretion is presented in Heller as historically determined. The Bill of Rights was added to the original Constitution to limit federal power. One provision of the Bill of Rights forbids government to deprive persons of life, liberty, or property without due process of law. The Fourteenth Amendment contains an identical due process clause, but directed against state action. The Court in Adamson turned historical handsprings to interpret the Fourteenth Amendment’s due process clause as incorporating–that is, making applicable to state action–most of the other provisions of the Bill of Rights. If Heller is applied to the states, it will be on the authority of Adamson.
Now I am happy to see Posner denounce so forthrightly the fiction that the Fourteenth Amendment “incorporates” the Bill of Rights. But he trusted his faulty memory–and not one of those law clerks he describes as “scurrying to the library and to the Web for bits and pieces of historical documentation” to support what a judge wants to decide. For the 1947 Adamson decision pointedly declined to adopt the “incorporation” narrative pushed so strenuously at the time by Justice Hugo Black–and permitted California to deviate from a federal right in the Fifth Amendment, which it and several other states continue to do. Indeed, the Adamson case is famous in constitutional law for its clash-of-the-titans quality, with Hugo Black’s dissent and Felix Frankfurter’s concurrence squaring off on the proper interpretation of the Fourteenth Amendment in relation to the Bill of Rights. The debate also spun off into the law reviews, and it rages to this day. And the Court has never yet adopted the Black thesis, that the Bill of Rights was originally intended to be absorbed in toto by the language of the Fourteenth Amendment so as to apply uniformly to the states.
There’s still more “looseness” in Posner’s article. Start with his assertion that “loose construction” was the “reigning theory” of legal interpretation at the time of the founding. He writes:
Blackstone explained that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law…. As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them” (emphasis added). John Marshall, the greatest Supreme Court justice of the generation that wrote the Constitution and the Bill of Rights, was also a loose constructionist.
For what it’s worth, Marshall denied this characterization, rejecting (in Gibbons v. Ogden, 1824) both “strict construction” and “enlarged construction.” And Posner’s reliance on Blackstone’s Commentaries rests on a misreading. On the basis of the quotation above–whose ellipsis conceals a jump of about a page and a half, and whose Posnerian italics have a significance that is murky at best–the judge concludes that Blackstone espoused a “loose (or flexible, or nonliteral) construction.” But while Blackstone gives a number of examples where an absurd literalism must be rejected, his five “signs” of the legislator’s intent–”the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”–are arranged hierarchically, each one being taken up only if the previous one does not yield a satisfactory result. So, if “the words” even divorced from all context are sufficiently self-explanatory, one does not need to turn to context. And if one does go there, and context suffices, one needn’t reflect especially on the “subject matter.” And so on. As Blackstone explains when coming to the fifth and last ”sign” (and, as he recognizes, the most treacherous method, which “must not be indulged too far, lest thereby we destroy all law”), these are successive ways of discerning intent “when the words are dubious.” But if, by the shortest interpretive route, doubts about intent can be allayed, then Posner’s preferred “looseness” is exactly what Blackstone would reject.
Finally, apart from his historical gaffes and misread sources, there is the now-familiar core contradiction of Posnerian pragmatism. After concluding an argument that can only be taken as holding that Justice Scalia was wrong about the historic meaning of the Second Amendment, Posner tells us “[t]here is no way to purge political principles from constitutional decision-making.” There is only a choice between Posner’s preferred “judicial modesty” (which is really not modest at all) and some immodest alternative. But if political choices cannot be purged from jurisprudence, then–to quote Blackstone again–”we destroy all law.” And if it all comes down to political calculations about what is good for the country, then Posner’s whole critique of Scalia’s Heller opinion on historical grounds was a waste of time, or a bit of showing off for readers who care about that sort of thing. But why Richard Posner should care at all is a mystery.