Santa Monica Observer - Community, Diversity, Sustainability and other Overused Words

By David Ganezer
Observer Staff Writer 

Respected Republican Judge Richard Posner Rejects Strict Constructionist View of the Constitution

"I see no value to a judge spending time studying the constitution, it's history or enactment"

 

Richard Posner with a cat.

When measuring whether or not laws are constitutional, the tradition is to look at the constitution, its intent and traditional interpretations.

Judge Richard A. Posner, who was appointed by President Ronald Reagan in 1981 and serves on the U.S. Court of Appeals for the Seventh Circuit in Chicago, has published an opinion on the Slate website, in which the respected jurist says studying the US Constitution has no value. Posner wrote:

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.

Liberal jurists are known for their view that the Constitution is a "living document," i.e. subject to re-interpretation by judges as time and circumstance dictate (and uniformly in a socially liberal, statist direction). For example, in Roe v. Wade, the liberal Warren court read in a woman's right to choose abortion, while nothing in the constitution actually addresses abortion at all.

Republicans generally view the Constitution either as Strict Constructionists, who say it says what it says (Antonin Scalia was a strict constructionist). Other conservative jurists say you must ferret out the intent of the framers of the constitution, by their other writings, such as the Federalist papers. So conservatives are rather surprised that Posner would publicly say, the heck with the Constitution.

Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy.

Thomas Jefferson said: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Richard Allen Posner,77, is an American jurist and economist. He is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.

Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy. Posner has generally been identified as being politically conservative; however, in recent years he has distanced himself from the positions of the Republican party authoring more liberal rulings involving same-sex marriage and abortion.

 

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