Richard Posner is a judge with the Seventh Circuit Court of Appeals. One of his jobs as such is to determine the constitutionality of laws. Of course, the various courts of appeals aren’t necessarily the final arbiter of such matters — that’s what the Supreme Court is for – though it is still one of their functions.
That’s why an op-ed penned by Posner is so absolutely befuddling to anyone who understands what his job supposedly is:
And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st Century.
Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: 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 18th Century guys were worrying about.
In short, let’s not let the dead bury the living.
Wow. Just … wow.
Posner, who is also a senior lecturer at the University of Chicago law school, actually wrote that judges shouldn’t spend one second studying the Constitution.
Sure, most of us believe many judges pay no attention to our country’s supreme legal document. But for someone like Posner to actually advise against it?
Ultimately, Posner’s position is that jurists should simply ignore parts of the Constitution they dislike. Instead, they should judge based on “teh feelz” about things like the Second Amendment and even First Amendment issues like so-called “hate speech.” Such a belief would also pave the way for prosecutors to take on those critical of climate change.
If the law is ignored, there is just power.
When Posner says “let’s not let the dead bury the living,” he is expressing his desire to do the burying himself.