From Judge Posner’s forthright concurring opinion in the recent case of Hively v. Ivy Tech Community College, decided en banc by the U.S. Court of Appeals for the Seventh Circuit:
“A diehard ‘originalist’ would argue that what was believed in 1964 defines the scope of [The 1964 Civil Rights Act] for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But … statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burning the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word ‘speech’ in the amendment embraced flag burning or other nonverbal methods of communicating.”
Full disclosure: we consider Richard Posner (pictured below) as one of our legal heroes and intellectual mentors.
