"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, January 13, 2016

Is it the Constitution which evolves or Judge Posner?

—Judge Richard A. Posner, Desperate Times, Desperate Measures, N.Y. Times, Aug. 24, 2003, at § 7, p. 10 (reviewing Daniel Farber, Lincoln’s Constitution (2003)) (asserting that Lincoln “flout[ed] Chief Justice Roger Taney’s order granting habeas corpus” and that “[o]fficials are obliged to obey judicial orders even when erroneous” (emphasis added)).

—Richard A. Posner, Law, Pragmatism, and Democracy 273 (2003) (“The propensity to obey judges is unrelated to the textual basis of their decisions. It is a function simply of their jurisdiction, with Ex parte Merryman a rare exception.”).

—Ibid. at 272 (asserting that Merryman is “one of the few cases in which a Supreme Court decision . . . has been openly defied by one of the other branches”).

—Richard A. Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency 85–86 (2006) (“[Lincoln] was as right to disobey the law in [Merryman] as Gandhi and Martin Luther King Jr. were right to do so in their situations.” (emphasis added)). 

Is it the Constitution which evolves or Judge Posner?


Welcome Instapundit and Chicago Boyz readers. Have a look around The New Reform Club; my co-bloggers write interesting stuff. 

PS: For more on Merryman, see Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review  (2016) (peer reviewed), available at http://ssrn.com/abstract=2646888

PPS: My prior post is here: Seth Barrett Tillman, The European Media & the Cologne Attacks, The New Reform Club (Jan. 12, 2016, 9:25 AM),  also available at http://ssrn.com/abstract=2714822, also available at http://works.bepress.com/seth_barrett_tillman/575/

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )


Jack Wayne said...

Considering Posner is a Dick, I see no problem with his evolution.

MarkJ said...

Interesting to note that a nice Jewish guy like Judge Posner is "evolving" toward a legal view that a Nazi could quickly learn to love.

Anonymous said...

The brilliant Judge Posner seems to be of the opinion that the Constitution says what he thinks it should say, rather than what it actually says.

Karl Maier said...

It now seems clear that over time the US Constitution is showing at least one major flaw. I'm talking about the fact that the Constitution gives the choice of the Justices of the Supreme Court to the other 2 branches of Government. This is like giving the choice of a jury all to the Defense, and giving the Defense an unlimited pool of jurors. So what America has ended up with is a Supreme Court filled with Justices that let the other 2 branches do whatever they want to do.
A strict reading of the Constitution, and in particular the 20% of the Bill of Rights made up by the 9th and 10th Amendments, demonstrates that the Federal Government assumed authorities that were never given to it, and in fact has entire departments like the Education Dept., Energy Dept., Labor Dept., Health and Human Services Dept., and Housing and Urban Development Dept., which aren't mentioned in the Constitution anywhere and are therefore authorities that were retained by the States and/or the People. A Supreme Court that was doing its job, and protecting the States and People from the power hungry Politicians in the other 2 branches, would never have allowed the Federal Government to plunder all this power and become this big bloated Tyrant and crushing burden on the entire nation.
What is needed is an Amendment that gives the choice of Supreme Court Justices to the States and the People. And a return of the unjustly and unconstitutionally stolen powers to the States (the laboratories of Democracy), and the People. The lifting of this huge burden on the nation as well as the "Feedback of Competition" between the States in administering their regained authorities, would both improve the economic growth rate as well as improve the delivery of Governmental Services that couldn't be better provided by the private sector.

Unknown said...

Ex Parte Merryman and its aftermath raise the most difficult issues regarding fidelity to law when such fidelity is reasonably perceived to have the possible effect of destroying the Constitution. Lots of people will reach different conclusions on the issue at different times in their lives. That's true for average people, and just as true for megabrains like Posner.

CW said...

Karl - flaws are inherent in any system as long as the system is not run by perfect angels.

We if allow the appointment of judges, control is not linked to the present administration, but at least lags. However as the citizens become more polarized and us vs. them party politics, the tendency is certainly for judges to line up with "their" party.

However, this still would have negative effects that lag behind direct voting. Direct voting, would see judges who stand on unpopular positions out of principled reasons get voted out. And those who demagogue would get voted in.

As much as impartiality is an illusion, we don't want judges campaigning on their very partiality.

So to repeat, you've certainly identified a flaw, but that's because humanity is flawed. Power tends to concentrate. The solution to this flaw itself is also flawed, but in my view, the tragic solution to the inevitable concentration of power was observed by Jefferson and had to do with "watering the tree of liberty".

r.alvarez said...

I see no contradiction. Judicial orders may be "right" or "erroneous", but that is independent from the obligation to enforce.

There are 2 levels of "rightness", judicial and moral. It is unclear to which the judge is referring in the last note, but it seems he is leaning toward the moral sense of the term, rather than the judicial. . . why else invoke those other figures known more for their moral leadership than their legal correctness.

We might be talking apples to oranges because the first note clearly conceives of a judicial order being erroneous... now if he means wrong on the law or wrong in the eyes of God (or whoever or whatever is your guidestone for morality) you got me.

Tom Van Dyke said...

" In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world -- and with which all the judges of all of the nations of the world are charged with interpreting -- has replaced the common law. Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong!

Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law. Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitutes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer.

And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist."--Scalia


a6z said...

I join r. alvarez (supra).

I'm no fan of Posner, all things considered, but I think he's right about this one thing. Lincoln, rightly, deliberately did an illegal thing to preserve the United States.

For that matter F. Roosevelt, rightly, deliberately did an illegal thing to preserve the United States (by preventing Hitler from conquering Britain) in that Roosevelt subverted, undermined, evaded, and in a few cases outright broke the Neutrality Act in the war crisis before Lend-Lease--and in that, above all other things, lies his greatness.