Dick Posner: no value in studying the Constitution

[Angel Eyes]

. . . which would be no big deal, except that Posner is a judge, U.S. Court of Appeals for the 7th Circuit:

http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_court_breakfast_table_for_june_2016/law_school_professors_need_more_practical_experience.html?wpsrc=sh_all_mob_tw_top

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 ...
...
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.

I'm not a legal scholar, but this sounds like "the Constitution does not mean what I want it to mean, therefore it is irrelevant."

[Perd Hapley]

So he's saying that slavery's legal again.

And those outdated laws against suppressors and machine guns; I can ignore those, too?

[Hawkmoon]

I'm not a legal scholar, but this sounds like "the Constitution does not mean what I want it to mean, therefore it is irrelevant."

I concur.

And I thought Posner was supposed to be one of the brighter lights amonf federal judges.

[longeyes]

Like insects who lie dormant for decades, the hard-core leftist is patient.  His time for revealing his full nature has come.

He should be impeached.

[Balog]

I'm always a fan of progs being honest about their beliefs.

[longeyes]

There comes a moment in a man's life--it's one of the varieties of senescence--when he wants to be loved by his grandchildren, thought cool and with-it, and not considered an old fuddy-duddy.  What else can explain such flapdoodle from a sitting Federal judge? 

Reminds me of old Tiresias in The Bacchae, trying too hard to join the dance.

[Perd Hapley]

There comes a moment in a man's life--it's one of the varieties of senescence--when he wants to be loved by his grandchildren, thought cool and with-it, and not considered an old fuddy-duddy.  What else can explain such flapdoodle from a sitting Federal judge? 

Reminds me of old Tiresias in The Bacchae, trying too hard to join the dance.

Nonsense. Oldsters invented that kind of left-ish doggerel. He sounds about as with-it as Joe Biden.

[seeker_two]

So....What did he take an oath to uphold?

[Perd Hapley]

So....What did he take an oath to uphold?

The law. The real law. Not that Constitution mumbo-jumbo. It's not as if it's the law of the land, or anything.

[Angel Eyes]

The law. The real law. Not that Constitution mumbo-jumbo. It's not as if it's the law of the land, or anything.

And "the real law" is whatever he says it is.

[Hawkmoon]

So....What did he take an oath to uphold?

No fair. Trick question!

[longeyes]

There is nothing in the Constitution that creates the court Posner serves on.  Congress can change all that.   Maybe it's time.

[De Selby]

You all should probably read the book he's talking about before jumping up and down about the comment.

There is a great deal of sense in critiques of what is commonly called "originalism."  One of the most obvious and damning is that the founders themselves were not originalists by any measure.

[Perd Hapley]

You all should probably read the book he's talking about before jumping up and down about the comment.

He said what he said. No book changes that.

[TommyGunn]

You all should probably read the book he's talking about before jumping up and down about the comment.

There is a great deal of sense in critiques of what is commonly called "originalism."  One of the most obvious and damning is that the founders themselves were not originalists by any measure.

If you're refering to the fact that the Founders were inspired by earlier philosophers and statesmen then I don't see anything "damning" about that.   They gave us a Constitution and Bill of Rights that is unique in the world, and worth respecting and maintaining.  So they "stood on the shoulders of giants" when they looked for inspiration and ideas.

I think many of the politicians today draw "inspiration" from being trod upon by midgets........

[Hawkmoon]

You all should probably read the book he's talking about before jumping up and down about the comment.

There is a great deal of sense in critiques of what is commonly called "originalism."  One of the most obvious and damning is that the founders themselves were not originalists by any measure.

There is no sense whatsoever in critiques of originalism, especially not idiotic critiques of the sort that hold we didn't have computers when the Constitution was written, so the Constitution shouldn't be applied to freedom of expression through computers (as an example). The Founders most certainly were "originalists" -- they wrote the "original" Constitution for a new nation. It doesn't matter that they drew on outside sources for inspiration. What they created was a new Constitution, an original creation.

The Constitution contains within it a mechanism for updating it if and when necessary. It doesn't say anything about "ignore this document if you don't like what it says."

[Perd Hapley]

Guys, "originalism" means a text should be interpreted according to its original intent; that we should strive to understand and apply the words and phrases as they were understood by their authors and by the original audience.

It doesn't have to do with how new or innovative the founders may have been.

[De Selby]

He said what he said. No book changes that.

Yeah, and to comment on what he said without understanding what he's referring to (he linked you to an entire book) doesn't make sense.

[De Selby]

Guys, "originalism" means a text should be interpreted according to its original intent; that we should strive to understand and apply the words and phrases as they were understood by their authors and by the original audience.

It doesn't have to do with how new or innovative the founders may have been.

This is correct.  When you consider that the intent of a historical body is hard to divine and open to all kinds of bias, it's not so obvious that it's the right way to interpret the document. 

A key problem for the brand of originalism is that it is mainly used by people who see only their Neo-liberal bias in the history of the constitution.  The "free market" conservatives are particularly guilty of this, as the founding fathers were not free market capitalists like ayn rand.

[Perd Hapley]

Yeah, and to comment on what he said without understanding what he's referring to (he linked you to an entire book) doesn't make sense.

That's not how any of this works. Referring to a book after one's comment doesn't shield one from criticism. Nor does it mean that only the people who read the same books can understand each other.

[De Selby]

That's not how any of this works. Referring to a book after one's comment doesn't shield one from criticism. Nor does it mean that only the people who read the same books can understand each other.

Of course anyone can comment.  The comments just don't make any sense unless you have some understanding of what he's talking about.  There is much merit in the suggestion that the constitution should be read on its text, and not based on competing historical accounts of what was said by who when the various clauses were drafted and passed. 

He's referring to a detailed and long-running legal controversy.  Understanding what he meant requires some knowledge of it, which is why he cited the book I would presume.

[Scout26]

This is correct.  When you consider that the intent of a historical body is hard to divine and open to all kinds of bias, it's not so obvious that it's the right way to interpret the document. 

A key problem for the brand of originalism is that it is mainly used by people who see only their Neo-liberal bias in the history of the constitution.  The "free market" conservatives are particularly guilty of this, as the founding fathers were not free market capitalists like ayn rand.

If only we had some notes about the debate and discussion that occurred during the drafting and ratification of the Constitution by the person that wrote it.^*  Or maybe books containing short dissertations about the various aspects of the said document, again by the people that were deeply involved in the drafting and ratifying the same document while attempting to persuade the states to either vote for or against the document. ^#  Even better would be some of their correspondence where they discussed the document.^&  Then maybe, just maybe, we might have some idea what their intent was.


*-  Madison's Notes.
#-  The Federalist and Anti-Federalist Papers
&-  I'm pretty sure we have lots of the correspondence of many of the Founding Fathers.

[De Selby]

Scout, the problem is that often they had competing reasons for enacting provisions.  It's easy to make the history fit your politics when that's the evidence base.

More importantly, a lot of the "original intent" issues are now meaningless, and the framers themselves didn't appear to want law by historical "originalism" to be the way the document was interpreted.  Posner has written extensively on the subject and even if you disagree, he makes points worth considering.  The sixth amendment is a key example - the framers never intended for criminal defendants to have lawyers at trial even if they couldn't afford them.  And in their day, self-representation was entirely realistic because court wasn't that complicated.  But to stick to that interpretation today would lead to obvious railroading.

[Ron]

The Supreme Court is nothing more than the third legislative body that has the final say on things.

The constitution is for all practical purposes null and void. For years it has been deconstructed by post modernist judges to mean the opposite of what the intent of the authors was as well as the plain meaning of the language. It isn't going to get better but it will get a lot worse.

[De Selby]

The Supreme Court is nothing more than the third legislative body that has the final say on things.

The constitution is for all practical purposes null and void. For years it has been deconstructed by post modernist judges to mean the opposite of what the intent of the authors was as well as the plain meaning of the language. It isn't going to get better but it will get a lot worse.

Examples of this "post modern" judging?