This is one of the penetrating questions Richard Posner posed at the Sixth Annual Constitutional Law Colloquium at Loyola University in Chicago. According to Judge Posner, judges resort to various ad hoc theories of interpretation to decide cases when the text of the Constitution itself does not provide any obvious or sensible answer to the issue presented in the cases before them. Take “the right to free speech,” for example. The text of the First Amendment clearly states that the Congress shall not “abridge” the right to free speech, yet despite the explicit existence of this textual right, many forms of speech–threats, false statements, copyright infringement, etc., etc.–are abridged via legislation as a matter of course. For Posner, then, “interpretation” is just a fancy word for judicial problem-solving (i.e. deciding disputes) in those cases in which the text of the Constitution is of no help. Returning to Posner’s preferred example (free speech), courts must often decide what legislative limits to free speech are consistent with the Constitution, but the Constitution itself does not provide any definitive answer to this question. Judges must figure out this problem for themselves.
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