Real talk: Why should judges bother studying that musty old Constitution anyway?

posted at 10:41 am on June 28, 2016 by Jazz Shaw

One of our high ranking judges deciding the fate of numerous cases and molding the minds of future jurists at a well known law school has a message for those entering the legal profession. If you plan to be a judge you should probably spend a lot less time worrying about the irrelevant views of a bunch of fossils who drew up some documents in Philadelphia back in the 1700s. (Mediaite, emphasis added)

According to 7th Circuit Judge Richard Posner in a post published to Slate, U.S. judges should stop studying the Constitution.

“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,” Posner argued.

Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century,” he continued. “Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.”

Lest you be tempted to think that this is just another liberal hack looking for some headlines on his blog, Posner is a judge on the US Court of Appeals for the Seventh Circuit in Chicago. He’s also a Senior Lecturer at the University of Chicago Law School. (I seem to recall another famous constitutional scholar who came from that esteemed campus.) This is a very active player in the cases which wind up at the Supreme Court which he is now deriding.

The opinion piece in question, published at Slate, wasn’t dealing with any particular case or cases currently before the court, but rather a general critique of the legal profession as a whole. Posner doesn’t think much of any of the current slate on the bench or even the recently deceased, finding “the posthumous encomia for Scalia as absurd.”

In short, Poser is arguing that the world has changed so much that the theories espoused by the founders in a bygone era are largely irrelevant in the modern world, advising that we “not let the dead bury the living.” On one level this is a tempting idea which is raised periodically. Some cases which the Supremes are called upon to judge in the current era deal with technologies and societal constructs which were, admittedly, beyond the wildest imaginings of the Founders. I doubt they had any inkling of DNA technology coming down the line and the idea that somebody could claim to be of a different gender than that identified by their genitalia at birth probably would have sent them into howls of laughter. Further, much of the language they used at the time has either disappeared from the modern lexicon or evolved so much that it seems absurd in the ears of today’s students. (You can impeach the President over a misdemeanor? You mean like jaywalking?)

But the true duty of our judges is to look past the specifics of the language when faced with such challenges and seek out the underlying intention of the Founders, applying their morals, principles and beliefs to situations arising in the context of the 21st century. It’s the bedrock on which we built the rest of the most powerful nation on the planet. This utter disregard for the past and the founding of the nation speaks volumes about where we stand today when the courts routinely seem to defy all logic and rational thought.

The Constitution? That’s so three centuries ago. Perhaps we should pat the Founders on the head and send them on their way to the dustbin of history… at least in Posner’s world.

RichardPosner


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