New York University Law Review
In this Madison Lecture, Chief Judge Posner advocates a pragmatic approach to constitutional decisionmaking, criticizing constitutional theorists who conceal their normative goals in vague and unworkable principles of interpretation. After discussing specific constitutional theories as well as the legal academy's increasing reliance on theory in genera Posner demonstrates the ineffectuality of constitutional theory, using the Supreme Court's decisions in United States v. Virginia and Romer v. Evans as examples. He argues not that these cases were necessarily wrongly decided, but that the opinions lack the empirical support that is crucial to sound constitutional adjudication. Posner urges law professors to focus their scholarship on forms of inquiry that will actually prove useful to judges and concludes by asking that judges themselves recognize and acknowledge the limitations of their empirical knowledge.
Richard A. Posner, "Against Constitutional Theory," 73 New York University Law Review 1 (1998).