One of the nation’s top federal judges – a man who makes decisions every year affecting the rights of millions of Americans – has acknowledged he thinks the Constitution has no value.
Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit, said he largely disregards the Constitution and the Founding Fathers when making rulings.
“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),” Posner wrote in a Slate essay.
Just as disturbingly, Posner said he also discounts many of the amendments that grant Americans their basic rights.
“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century,” Posner wrote. “Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. … In short, let’s not let the dead bury the living.”
It is not the first time that Posner has made such comments.
“I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution,” Posner said at last year’s Loyola Constitutional Law Colloquium. “I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.”
Posner: We’re Writing ‘Common Law’
Posner further said he agrees with the University of Chicago’s David Strauss that “the Constitution is an authorization to the judiciary to create a body of common law.”
Posner was known as a conservative when nominated in 1981 by President Reagan, but has issued a series of opinions since then that have upset those on the right.
Regarding the NSA’s actions, Posner said the Constitution has limited value: “What would the framers of the 14th Amendment have thought about national security surveillance of people’s emails? That is a meaningless question.”
Posner also said he worries little about how courts have ruled in the past.
“My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask, ‘Is this blocked by some kind of authoritative precedent of the Supreme Court. If it is not blocked, I say fine, let’s go with the common sense, sensical solution,” he wrote.
When he is not on the bench, Posner serves as a senior lecturer at the University of Chicago’s Law School, where has an opportunity to meld the minds of young lawyers.
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