Patterico's Pontifications

6/28/2016

Court of Appeals Judge: The Constitution Is Old School, Don’t Waste Your Time

Filed under: General — Dana @ 2:52 pm

[guest by Dana]

At least there’s no question about where Judge Richard Posner stands:

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.

I get the impression that the Constitution is being viewed as little more than a pesky, antiquated and unnecessary hindrance to power that must be shrugged off. How ironic when you consider the vast number of Americans who respect the Constitution and study it themselves because they are concerned about the rule of law as well as potential abuse and overreach of the courts and the state and yet, be reminded that those whose job entails rendering decisions that actually impact the lives of Americans in profound ways, don’t necessarily hold the document and its contents with the same level of regard and respect.

Ironically, even Posner had to have sworn a certain oath when appointed to the bench:

I … do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as … under the Constitution and laws of the United States. So help me God.

This clearly explains why Posner’s view is so problematic:

The Constitution isn’t the most magnificent governmental document in history because the founders were clairvoyant about technological development or evolution of culture. It’s magnificent because it is based on eternal principles, understanding of unchanging human nature. The Federalist Papers make virtually no mention of the technology of the eighteenth century, but they are replete with references to historic republics, human nature, and the necessity of local governance versus distant bureaucracy.

The Constitution protects our freedoms because, first, it assumes that our freedoms do not spring from government; second, because it assumes that people are vain and ambitious; and third, because it assumes that a government handed over to people, unchecked, will result in tyranny.

Tyranny. Absolutely. The writers of the Constitution may not have had much foresight into 21st century technology and culture, but what they did know was that human nature never changes, and that the natural man has an inherent thirst for power. That has never changed nor is it likely to. While everything around us might change over time, man doesn’t. For better or worse.

The Constitution was created to stop oligarchs like Posner from ruling over us by deeming himself a higher moral authority than the people based on his personal value system. But that’s precisely why the left hates the Constitution: it’s an obstacle to their rule.

Interestingly, Posner, has been suggested as a possible replacement for the late Justice Scalia:

He is respected by judges, law professors and lawyers alike. He is the modern “Albert Einstein” of American law, and it has always been an embarrassment to the legal system that he is not a member of the Supreme Court. Imagine the NBA Hall of Fame without Michael Jordan: Richard Posner is the Michael Jordan of Law.

Three additional factors are important in supporting Posner’s selection. The judge is not a moderate but an iconoclast, with unique positions that neither political party fully supports: He supports same-sex marriage, is a conservative on economic matters, opposes the war on drugs, minimizes privacy and is famous for undertaking economic analysis of many issues. Everybody agrees with him sometimes and almost no one all the time.

Second, Posner is already 77 and is unlikely to serve for many decades given his age. The next President could conceivably name Posner’s successor.

Finally, and most importantly, the idea that one of the leading lights of law worldwide is a Supreme Court justice ought to make anyone who cares about the high court and the law proud to be an American.

Sure. Whatever. But, I say, let’s get real about this:

Untitled

–Dana

UPDATE BY PATTERICO: In my ideal world, this kind of talk would get a judge impeached and removed. And no, I am not joking.

29 Responses to “Court of Appeals Judge: The Constitution Is Old School, Don’t Waste Your Time”

  1. Hello.

    Dana (995455)

  2. If the Constitution is a dead document that deserves no deference, why should other laws? On what basis should the Supreme Court and appeals courts assess laws, etc.? The only thing I can think of is whatever the judge decides to follow.

    Jonathan Kurtz (0e09bd)

  3. The only thing I can think of is whatever the judge decides to follow.

    That’s Sharia law as described to me by a militant(against US intervention) Iraqi lady.

    Replacing judge with cleric.

    papertiger (c2d6da)

  4. I’d rather heed the words and advice of a group of brilliant 18th century men than those of a bunch of halfwit, liberal, 21st century jackasses.

    arik (02de93)

  5. Tyranny. Absolutely. The writers of the Constitution may not have had much foresight into 21st century technology and culture, but what they did know was that human nature never changes, and that the natural man has an inherent thirst for power. That has never changed nor is it likely to. While everything around us might change over time, man doesn’t. For better or worse.

    That is a beautiful statement, Dana. I wish Judge Poster had half your intelligence and eloquence.

    DRJ (15874d)

  6. There seems to be a tier-approach to the Rule of Law. The law does not apply equally to all Americans. This has grown progressively (pun intended)… worse over the last 7.5 years.

    Colonel Haiku (dd820b)

  7. The man spoke reality even if he is sugar-coating it as principle. For a very long time the Constitution has been what five members of our Supreme Ruling Council say it is.

    I am not a Posner fan. I don’t think he should have been appointed to the Court of Appeals, God forbid the Supreme Court. But he has his fans among academics who think a head full of books and an erudite manner of speech equal intellect.

    nk (dbc370)

  8. Getting closer every day…

    njrob (fcfa44)

  9. UPDATE BY PATTERICO: In my ideal world, this kind of talk would get a judge impeached and removed. And no, I am not joking.

    Patterico (86c8ed)

  10. Indeed, Pat,
    Primae facie breaking his oath of office, isn’t it?
    (mutters the non-lawyer)

    MD in Philly (f9371b)

  11. the same dang type of fool as vaughey,

    http://www.reuters.com/article/us-usa-sexcrimes-lawsuit-idUSKCN0ZE2PF

    narciso (732bc0)

  12. If Judge Posner were truly honest, he would take his view to its logical conclusion: overturn Marbury v. Madison and end all judicial review of democratically enacted laws. If the majority enacts a law through its legislature, then how can one use an antiquated, 18th century (or 19th century, if talking about the 14th Amendment) to overrule the will of the majority?

    But of course he will never do that, because, as Scalia pointed out in one of his opinions, no one ever interprets anything to limit their own power.

    Bored Lawyer (65f3b0)

  13. PURGE, the elites will not stop until the fear of the Maker comes. Praise Jesus!

    Or as Happy says, stink pee Harvard Ivy trash.

    Rodney King's Spirit (e2dd8e)

  14. Better Judge Judy than Judge Posner.

    This nation is in a world of trouble.

    navyvet (c33501)

  15. True, the Constitution is out of date, it was written and approved over 200 years ago. However, no one can fault the Framers for the passage of years, or for failing to anticipate and provide for technological advancement and societal change. Truth is that many of the issues that reach the Supreme Court are outside the provisions of the Constitution, which opens doors for creative interpretation.

    So, yes, the Constitution is an old and inadequate guide for a modern nation, but it’s still better than what we have now.

    ropelight (596f46)

  16. Ah c’mon, folks, the actual truth is: we don’t actually have a Constitution anymore, and haven’t had one for quite some time. I remember friends at HLS telling me this, ruefully I might add, back in the 1980s. Which brings me to Point 2, Thersites that I am…

    “no one ever interprets anything to limit their own power”

    Close, but I would amend this to read, “no one ever interprets anything to limit the power of the Identity-Politics Team for which they play.

    Dearborn, MI: Hey, how come there are four Jews on the Court, and no Muslims?
    Texas and CA: Si, and how come there aren’t tres wise Latinos, instead of only one?
    Detroit: Yo, how come the only black judge is some dawg who thinks clearly and talks like a cracka? Give us Justice Sharpton, yo!
    Iowa: Hey, we’re the ones who created the whole thing, how come there aren’t any… oh you know what, never mind. If anyone wants me, I’ll be sitting in the corner, eating a bowl of mayonnaise.

    hunson abedeer (80144e)

  17. True, the Constitution is out of date, it was written and approved over 200 years ago. However, no one can fault the Framers for the passage of years, or for failing to anticipate and provide for technological advancement and societal change. Truth is that many of the issues that reach the Supreme Court are outside the provisions of the Constitution, which opens doors for creative interpretation.

    So, yes, the Constitution is an old and inadequate guide for a modern nation, but it’s still better than what we have now.

    ropelight (596f46) — 6/28/2016 @ 10:47 pm

    Respectfully, I totally disagree. The Constitution was written to prevent a centralized power from ruling rather than governing; to protect a human being’s Rights that such are born with. The Constitution was the blueprint to self-government — Power belongs not to a king or centralized authority, but rather to the People who loan it to their elected representatives for given terms of time.

    The Constitution exists to protect us from the evil of tyranny in whatever form it deems to take: monarchy, mob rule, slavery/classic democrats, Nazism, communism, Islamic terrorism, political correctness, leftist/modern democrats…and whatever else is coming down the pike. There are those who seek to take our freedoms — speech, religion, firearms, etc — in real time; it’s happening before our eyes.

    Asserting the Constitution is out of date is simply wrong, it has never been more current and relevant in my lifetime.

    Pons Asinoum (49e2e8)

  18. We need an amendment including Judges and Presidential signing orders to the Congress Shall Make No Law bits of the Bill of Rights – with direct and immediate repercussions for those elected office holders who promote unconstitutional bills – ranging from dipping into their own checking account for legal fees, to impeachment with lifetime ban from holding elected office, no matter which gerrymandered district votes the crook in.

    papertiger (c2d6da)

  19. G D each and every person who claims the Constitution is “Outdated”.

    The US Constitution is a framework for controlled self governance, with the only policy preferences being the Bill of Rights added for the protection of the individual citizen FROM THE GOVERNMENT.

    The Constitutional framework included the procedural preference that the legislature be the lawmaking branch, that the Executive enforce the laws, manage foreign policy, and secure the nation, and that the Judiciary be independent – and that each branch be checked by the other.

    The Framers understood the dangers of bureaucracy – they were subjected to the vagaries of a colonial establishment that was unchecked. The Framers rejected rule by “experts.” In the 20th Century the left has marched trough the institutions and we now have a permanent government of unelected “administrators” that is unable to be anything but corrupt.

    The Constitution set forth specific legitimate standards for modification – and judicial fiat is not one of them.

    Our current Federal Government is not faithful to the Constitution, it is a soft tyranny. A soft tyranny that is hardening with every additional corpuscle being added to the national sclerosis.

    Steve Malynn (4bc33a)

  20. As the host notes:

    UPDATE BY PATTERICO: In my ideal world, this kind of talk would get a judge impeached and removed. And no, I am not joking.

    Patterico (86c8ed) — 6/28/2016 @ 5:11 pm

    Richard Posner is an oath breaker who is unworthy of any public office – he is now a self confessed enemy of the Constitution he is sworn to “support and defend”.

    Steve Malynn (4bc33a)

  21. In his day, Posner was unquestionably one of the most important and cerebral jurists in the country (see especially his work on “Law and Economics” and the salutory effect that had on antitrust law).

    Unfortunately, he jumped the shark years ago. Whether this is due to his advanced age or just “black robe syndrome,” he’s now regarded more as the kooky old uncle that everyone tries to ignore at family gatherings than the luminary he once was.

    LKB (738b91)

  22. If Judge Posner were truly honest, he would take his view to its logical conclusion: overturn Marbury v. Madison and end all judicial review of democratically enacted laws. If the majority enacts a law through its legislature, then how can one use an antiquated, 18th century (or 19th century, if talking about the 14th Amendment) to overrule the will of the majority?

    Should have been overturned long ago

    Better Judge Judy than Judge Posner.

    Amen

    UPDATE BY PATTERICO: In my ideal world, this kind of talk would get a judge impeached and removed. And no, I am not joking.

    Unicorns will march down 5th Ave in NYC before this will happen

    Horatio (b6d3c4)

  23. People who argue for constitutional amendments or for impeachment in order to make judges be faithful to the Constitution are putting the cart before the horse. FIRST, consider solutions that do not require a supermajority. For example, if a judge says that he decides cases based on his instincts and personal sense of what the outcome ought to be,without regard to statutes and the Constitution, then how about the executive branch simply declining to enforce his judgments? Sometimes life is like the Wizard of Oz, and the way to get home is as simple as clicking your heels.

    Andrew Hyman (08e860)

  24. Nos. 17 and 19: excellent, thank you. It is stupefying—they didn’t foresee a toaster or 747, so the lessons of history from Greece, Rome and England all fade from significance. Where did these people go to school? What on earth did they study?

    Harcourt Fenton Mudd (5e0a82)

  25. Patterico, there are any number of judges who should be impeached first. Thelton Henderson comes to mind.

    Kevin M (25bbee)

  26. Should federal judges require a second confirmation when they get to age 70? Should they be subject to removal for mental impairment?

    Kevin M (25bbee)

  27. I suppose this is the best place to point out this book I noticed today at Barnes and Noble.

    https://www.amazon.com/Relic-Constitution-Undermines-Government—Presidency/dp/0465042694/ref=sr_1_2?s=books&ie=UTF8&qid=1467430311&sr=1-2&keywords=Relic

    Yep, they are not embarrassed to say throw out the Constitution and give even more power to the President.

    kishnevi (10c258)

  28. there’s something wrong with the author, he’s a smith richardson and bradley fellow and he came to this conclusion,

    http://political-science.uchicago.edu/people/faculty/Howell%20CV%202014.pdf

    narciso (732bc0)


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