Solum on Posner and the Descriptive/Normative Gap in Originalist Theory

By Eric Segall

After Dick Posner retired from the federal bench, I wrote on this blog that "there is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner:

I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time.

Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of his generation. His disdain for grand theory of any kind, especially textualism and originalism is, well, legendary. He once said the following at a conference where he was reviewing a book written by Solum's colleague Randy Barnett:

What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails? That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.

In the same speech, Posner made clear that judges should veer away from or use justiciability 
doctrines to avoid even clear constitutional text if modern conditions so required. Given his anti-originalist, anti-textualist judicial preferences, it is interesting that a prominent originalist would praise Posner as the "greatest American judge of his time."

I do not want to speak for Professor Solum, but I can think of two possible explanations. First, Posner of course made enormous contributions to many other areas of the law other than constitutional law and theory, and Solum did emphasize those in his blog post. Second, and probably more importantly, Solum said that "Posner wrote about many topics, and there were hits and misses.  I disagree with most of Posner's work in normative legal theory." I am confident Solum strongly disagrees with Posner's clear and emphatic rejection of originalism as a viable method of constitutional interpretation.

Nevertheless, Solum's praise of Posner raises a question I have tried to get academic originalists to engage in but, with one exception (Professor Christopher Green), with little success, and it is an enormously important question for constitutional theory. On the one hand, many originalists, including Solum in his congressional testimony, argue that originalism and textualism have a long pedigree and have traditionally (maybe until the Warren Court), been "the predominate view of constitutional interpretation.... [F]or most of our nation’s history, the Supreme Court has made a good faith effort to follow the constitutional text."

But, on the other hand, many originalists argue that the Court has never been sufficiently originalist and that needs to change. I am quite confident, as I've written here before, that Professor Barnett along with noted academic originalists Michael Rappaport, Richard Kay, Michael Paulsen, and many others, believe that the "predominate view" of constitutional interpretation over the course of the Court's history has been closer to living constitutionalism than originalism, and that is why these scholars write the way they do. They would likely view their work as mostly normative, not descriptive.

It is true that Professors Will Baude and Stephen Sachs have made quite a splash over the last few years arguing that originalism is indeed "our law." but their work has not yet been generally adopted by most originalists,

All of which brings us back to Judge Posner. Assuming, for sake of argument, that most scholars would agree that he is one of the most important judges in American history, it is important to ask who else might fall in that category. There can be little debate that as far as constitutional doctrine is concerned, Justices Powell, O'Connor and Kennedy have had the greatest influence on how cases were actually decided over the last fifty years, and none of them could even remotely be characterized as an originalist. Before them, we might name Holmes, Jackson, Cardozo, Friendly, and Brandeis. None of them can fairly be characterized as originalist. That leaves Justices Black and Scalia, but in a tug of war of comparing their impact on the law with the others, the former nine judges clearly outweigh the latter two in terms of importance.

If I am right, then Solum's statement that originalism and textualism have been generally accepted as the dominant modes of constitutional interpretation is quite clearly wrong. The most prominent judges and justices, at least of the 20th and 21st centuries, have been much more pragmatist than originalist. And to put the icing on the cake, few would argue that Chief Justice John Marshall was an originalist, given his reliance on practical reasoning in many of his most important cases. Professor Jeremy Tellman has persuasively argued this point in an excellent recent paper.

Professor Green, in a recent review of my book Originalism as Faith in the University of Chicago On-Line Law Review, largely agreed with my descriptive account of both the Supreme Court as a non-originalist institution and constitutional doctrine as largely non-originalist, but then argued the following:
Only someone interested in fighting against the weakest possible opponents would define originalism as a thesis about the Supreme Court, rather than a thesis about the Constitution. Rather than faith in the Supreme Court, constitutional theories like originalism or its competitors are best seen as theories about how to measure the Court’s own faithfulness.
I will be responding to Professor Green at some length in the University of Chicago Law Review but for now it is enough to note that his separation between constitutional law and the Constitution's original meaning, a large gap, suggests something important about the utility, practicality, and desirability of originalism as a method of constitutional interpretation. It also suggests that one argument sometimes advanced by originalists in favor of their theory, that, as Solum said, originalism has been an important method of constitutional interpretation for a long time, is simply not accurate. But mostly, Judge Posner, along with Holmes, Jackson, Cardozo, Kennedy and most other historically important judicial actors, would not embrace originalism as their own method of constitutional interpretation. That alone doesn't doom the theory, but it does place a heavy burden of proof on those who claim that it should be the theory that drives how the Supreme Court decides constitutional cases.