Judge Posner’s Common Law Constitution
نویسندگان
چکیده
This past year, Judge Richard Posner published a pair of essays endorsing the common law method of constitutional interpretation. “David Strauss is right,” he wrote, in a contribution to Slate’s annual Supreme Court Breakfast Table. “The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18thcentury guys were worrying about.” He clarified and expanded on his position in a follow-up piece: Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law —that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law. That was not my intention, and I apologize if carelessness resulted in my misleading readers. What I think is undeniably true is that while the Constitution contains a number of specific provisions . . . many other provisions are quite vague. . . . . . . . Today’s judges are left to do the best they can, within the boundaries they perceive in phrases such as "due process," or "cruel or unusual." Their efforts in the aggregate create “constitutional law” based on what is sometimes called the “living Constitution.”
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