In a recent editorial in Slate, 7th Circuit Appeals Court Judge Richard A. Posner contended explicitly that the opinions of the framers, the history of their arguments, the bases of their decisions, and the actual textual language of the Constitution itself are irrelevant to today’s reality.
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 centuriesâ€”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 postâ€“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.
Judge Posner went to Yale (Saybrook College) and graduated Summa in 1959, but it is obvious that Yale only thought him to be a smartass and a proficient sophist. He did not learn wisdom or humility there, and he obviously never studied Cicero, who wrote of Natural Law (De Re Publica, book 3):
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.
The framers of the US Constitution tried in their imperfect human way to embody as much of Natural Law (those truths which Jefferson held to be self-evident) in the Constitution and the Bill of Rights as they could. No genuinely intelligent person would believe that Human Nature, Justice, and the fundamental realities of life have changed over the course of a bit more than two centuries simply because men travel with automobiles instead of on horseback or because we write electronically on keyboards and computers instead of with ink and quill pens.
Judges appointed to Federal Courts of Appeal take two oaths. The second of these is precisely the same oath taken by members of Congress.
I, (name), do solemnly swear (or affirm) 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.]
Judge Posner took that oath, and he is now telling us, openly and in public, that he does not believe that he has a genuine duty to “bear truth faith and allegiance” to that Constitution. He believes instead that federal judges are Platonic guardians, a class of rulers, independent of the (out-dated and irrelevant 18th century Constitution) free to apply their own superior wisdom and to make up the law any way they see fit.
He ought to be impeached and thrown out of office on the basis of that editorial.