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.
In a recent op-ed for Slate, Judge Posner, a senior lecturer at the University of Chicago Law School, argued that the original Constitution, the Bill of Rights, and the post–Civil War amendments “do not speak to 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.”
He added, “let’s not let the dead bury the living.”
Judge Posner, an outspoken opponent of late Justice Antonin Scalia, also blasted “absurd” posthumous encomia for the late conservative.
“I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships,” he wrote. “I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.”
David Bernstein, who teaches at Antonin Scalia Law School, formerly George Mason University School of Law, called Judge Posner’s swipe at Scalia “revolting.”
“We all know Posner doesn’t think highly, to say the least, of Scalia. Judging from what Posner writes, the distaste seems to stem primarily from jealousy — Posner thinks he would be a far better Supreme Court Justice than Scalia was, and he resents that as a ‘lower court’ judge, his writings, though highly influential in their own right, will never get the same attention and accolades as Scalia,” Mr. Bernstein wrote.
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