prior probability

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.

Note: this is the fourth in a series of five blog posts responding to Larry Solum’s defense of public meaning originalism.

At some point, defenders of orginalism (like our friend and colleague Larry Solum) must contend with or explain away Brown v. Board of Education, the most famous “Living Constitution” decision in U.S. Supreme Court history. In Brown, the Court concluded that the doctrine of “separate but equal” has no place in contemporary public education, effectively overruling the leading equal protection case of Plessy v. Ferguson. The problem for an originalist, however, is that he must conclude that Brown v. Board was wrongly decided. (After all, the Fourteenth Amendment was enacted in 1868, when segregation in public places was the norm, so the decision in Plessy v. Ferguson is probably far more consistent with the original public meaning of the equal protection clause than the decision in Brown is.)  For his part, Professor Solum (like most other constitutional originalists) actually argues that public meaning originalism is in no way inconsistent with Brown v. Board; he even argues that any claim to the contrary is a myth (Myth #3). But this claim is pure bullshit, and it’s high time he be called out on it. In our view, the problem with Brown is not that it departs from orginalism. No, the problem with Brown is the decision itself. It was based on shoddy social science, not law. (See, by way of example, Contempt and Pity by Daryl M. Scott.) Although the Court made an important symbolic decision, it lacked any real power to enforce its own judgment. (Or as the headline below notes: “Date to end practice not set.”)

Courtesy of the Living Constitution.

Note: this is the third in a series of blog posts responding to Larry Solum’s defense of public meaning originalism.

As we mentioned in our previous posts, Professor Larry Solum recently wrote up this statement in support of “public meaning originalism” and Judge Neil Gorsuch. (As of today, Solum’s statement has been downloaded over 3100 times.) In his defense of originalism, Professor Solum identifies four popular myths surrounding the theory of originalism. Among these myths and misconceptions is the claim that originalist judges are unable to apply the Constitution to new circumstances (Myth #2). In particular, Solum states (p. 3): Continue reading →