Judge Richard Posner sees “absolutely no value” in studying the U.S. Constitution

[Bill the Cat]

http://www.washingtontimes.com/news/...s-constitutio/

Seventh Circuit Judge Richard Posner sees “absolutely no value” in studying the U.S. Constitution because “eighteenth-century guys” couldn’t have possibly foreseen the culture and technology of today.

“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),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

[Adam]

Is anybody surprised? Someone after Tassman's own heart.

[Sparko]

as one of the commenters said:

TS Atomic • 19 hours ago

The very Constitution he denigrates protects his right to spew such drivel. However, it does not protect him from disqualifying himself from the position he holds. When he was seated, he swore an oath to "...solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God..."

I see no reason why he should not be righteously impeached for violating his oath of office willingly and knowingly.

I agree, he should be impeached, since his very job is defending and upholding the constitution that he just crapped on.

[HumbleThinker]

http://www.washingtontimes.com/news/...s-constitutio/

Seventh Circuit Judge Richard Posner sees “absolutely no value” in studying the U.S. Constitution because “eighteenth-century guys” couldn’t have possibly foreseen the culture and technology of today.

“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),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

His writing seems so caught up in rhetoric and is hardly expounded upon that I am reluctant to draw any real conclusions about the substance of his position. If I was to be generous, I could imagine him putting forward the Jeffersonian idea of a generational Constitution with his famous saying that "the earth is for the living," but I honestly don't even feel comfortable giving him that. It just seems like a pure rhetorical piece that has little to no actual substance.

[mikewhitney]

The comments of that judge may be able to be called treasonous or, at least, maybe certain of his actions in court -- since he has the superficial power to decide things in opposition the the constitution. The power is superficial in that no act by the government in violation of rights secured by the constitution is binding upon a person.

Also, when he says the constitution was not envisioned for the 21st century, has he heard of the power to amend the constitution? I guess he should have spent some additional time studying the constitution.

[rogue06]

http://www.washingtontimes.com/news/...s-constitutio/

Seventh Circuit Judge Richard Posner sees “absolutely no value” in studying the U.S. Constitution because “eighteenth-century guys” couldn’t have possibly foreseen the culture and technology of today.

“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),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

What do you expect from a side that already has their conclusion and plan on making something up to support it later?

[rogue06]

as one of the commenters said:

TS Atomic • 19 hours ago

The very Constitution he denigrates protects his right to spew such drivel. However, it does not protect him from disqualifying himself from the position he holds. When he was seated, he swore an oath to "...solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God..."

I see no reason why he should not be righteously impeached for violating his oath of office willingly and knowingly.

I agree, he should be impeached, since his very job is defending and upholding the constitution that he just crapped on.

But that was from 19 hours ago when he said it and another 2½ hours since you posted it.

IOW, that is so yesterday and we shouldn't bother worrying what someone thought back then.

[Starlight]

This Reagan-appointed judge was taking a swipe at Scalia, who he strongly disagreed with. One of Scalia's major projects was the promotion of strict originalism, the idea that what is all-important in the making of modern decisions is the meaning of the constitution to the people at the time of its enactment and their understanding of it.

Strict originalism generally hasn't been a particularly popular legal view within academia or the judiciary, and Scalia's attempt to popularize it was viewed with skepticism by many, and Scalia himself was generally viewed as a giant hypocrite for deviating from his own strict originalist methodology whenever his personal hobby-horses were involved. Most viewed Scalia as just being an utterly zealous conservative in his political views and using a pseudo-intellectual alleged adherence to originalism as a tool to try and justify ruling in favor of those political views, a tool that he dropped whenever it wasn't convenient for the furtherance of those views.

The more common view is the idea of a living constitution, where the constitution is understood as providing general principles. Thus, for example, when the 8th Amendment bans "cruel and unusual" punishment, it is not banning what the writers of that article themselves thought was cruel or unusual in their own day, but is instead a ban on anything that the changing American society happens to regard as cruel and unusual in any particular period of time. More generally, the constitution should be interpreted as expressing certain overarching philosophical ideas about the general importance of freedom, rights, life, liberty, security, etc. And so new technologies and new ideas that never entered the mind of the framers of the constitution, can still be evaluated in light of general constitutional ideas and thought-patterns even if there's not a single article in the constitution that speaks to the topic.

Posner is himself somewhat of an extremist in terms of taking the Living Constitution view to an extreme in seeing only the general overarching ideas behind the constitution (eg "life, liberty, and the pursuit of happiness" could be a summary of them) as still relevant, and seems to think that even the details of the text of the constitutional document itself are no longer relevant. Possibly he would even go as far as thinking that the "ideas behind the constitution" should be itself interpreted in a modern sense: i.e. he would view a poll of modern Americans in the street asking them "what legal and philosophical principles do you see as being central to your culture and country?" as vastly more relevant data than if he were handed a 10 volume work by the founding fathers titled "Constitutional Principles". While most judges tend to be happy to mix in at least a little originalism into their primarily living constitution view, Posner doesn't like originalism at all. I get the sense from reading his writings that a lot of this is a result of his own judicial experience: He's consistency run across many cases in the course of his career that involve new technologies, and which the words of the constitution had nothing to say about. So he's repeatedly seen for himself the short-comings of originalism in practice, and has been repeatedly forced to go very far afield from the constitutional document itself in order to find some meaningful way to make rulings on these subjects. Hence his own extreme opposition to Scalia's strict originalism.

In short, both he and Scalia are/were radicals in their interpretative methods.

[Bill the Cat]

In short, both he and Scalia are/were radicals in their interpretative methods.

No. Scalia respected the Constitution. Posner sees it as a punchline to a joke,

[fm93]

What do you expect from a side that already has their conclusion and plan on making something up to support it later?

There's an entire side that engages in such behavior, rather than individuals of all viewpoints engaging in such behavior from time to time?

This Reagan-appointed judge

to the subtle burn here.

[fm93]

No. Scalia respected the Constitution.

This does not conflict with the claim that Scalia was a radical in his interpretative methods.

Posner sees it as a punchline to a joke,

I don't think that's a fair assessment. As Posner wrote in his op-ed:

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.

He's clearly endorsing a position which argues that the SC should interpret the Constitution based on current concerns. That's hardly "treating it like a punchline."

[Starlight]

To give some further clarifying examples...

In the case of normal laws, there's long been disagreement over the extent to which the original author's intent should matter. Let's say the words of a law are a bit ambiguous. Should the court dig through the speeches made by the person who wrote the law in order to determine "what they really meant"? If the writer still lives, should the court ask them to come testify on the witness stand as to what they meant? What happens if they then testify and say "well I meant X when I wrote it, but since then I've realized it would be better interpreted as Y"?

In practice, laws are voted on by ~100-500 politicians in order to pass. So even if the person who wrote the law meant one thing by it, some of those who voted on it might have interpreted the ambiguous bits differently and had something else in mind when they approved the law. Ultimately it becomes very difficult to prove that all the hundreds of people who voted for the law had exactly the same thing in mind. What they actually voted on was the text of the law. They might have all voted for that text for very different reasons to each other. Thus some people argue, it is not authorial intent that ought to matter, but only what the words in the text say. If the author wrote an unclear or confusing law, and hence didn't convey their intended meaning well, then that would be their fault and their problem. One way to get around this issue, which some countries use, is to have the author provide a "statement of intent" as part of the text itself. That statement of intent explains the ideas behind the law and the rationale and intentions for it, which can be used by future courts to resolve any ambiguities or problems with content of the law itself.

So even with normal laws there is the question of to what extent what was in the author's mind when they wrote the text is relevant, versus whether only the words in the text of the law itself matter.


To give another example... when my country was first colonized, the British crown made a few different agreements with small numbers of the native peoples. A century or so later, there was a political push to retroactively regard one of these agreements, called the Treaty of Waitangi, as a kind of 'founding document' for the country. The agreement had no legal force under 20th century law, so people had to actively think about the question of how such a historical document could be incorporated into existing law. Relatively few documents about the authors of the original treaty survive, so it was largely impossible to know authorial intent. The original treaty itself existed in two languages - an English original and a Maori (mis)translation - that were arguably different to each other in some important respects. So it was a bit difficult to argue that the text of the treaty should be the be-all and end-all, since the two texts differed. And, perhaps most problematic, the treaty doesn't really say a whole lot that is overly relevant to today because it focuses on issues that were relevant at the time it was signed.

The solution that they came up with was that something called "treaty principles" should be given legal force. They decided "The spirit of the Treaty transcends the sum total of its component written words and puts literal or narrow interpretations out of place." Rather the broad sentiments and general goals are to be focused on. It is the "spirit" of the law, and not the "letter" that is considered relevant today. And as a result, nowhere is there a final and complete list of treaty principles. But the concept of "treaty principles" has now been made legally binding.

I think in the minds of many, it goes even further, and the historical treaty is reinterpreted as an idealized generic and conceptual treaty: If a modern, informed, and thoughtful person was writing a fair and equitable treaty today between native peoples and colonizers, what general principles would they consider important? They would consider those to be what "treaty principles" are.


Thus we see 4 different versions of interpretation: Authorial intent - what was going through the mind of the historical people at the time they were writing the text. Textual literalism - the literal words that appear in the text of the law (though the question of whether the words themselves should be interpreted with their historical meanings or modern meanings also needs to be answered in this interpretation). Broad principles - the general principles that appear in the mind of a modern reader of the law as they read through it and ponder the ideas and concepts they see behind it. Idealistic principles - the general principles that modern people think ought to have been in the minds of an ideally thoughtful and intelligent person writing a law on such a subject.

These different interpretive views tend to also be relevant to biblical interpretation and theories of biblical inspiration. Thus liberal Christians tend to think the that divine inspiration of the bible lies in the broad principles that it outlines, or idealistic principles that have since been developed by the Church over millennia, but acknowledge that the original writers were themselves flawed humans with some occasional bad ideas, and thus think that errors can be present in both authorial intent and the text itself. While more conservative Christians locate the divine inspiration of the bible in either the minds of the writers or in the text itself.