Dick Posner: no value in studying the Constitution

[Perd Hapley]

Posner has written extensively on the subject and even if you disagree, he makes points worth considering. 

All of that is great, but it's the statement that he just made we're taking issue with. I think we'd all agree with you that if we read his other writings, and the sources he's drawing from, we'd understand him even better. That would be an originalist approach, though, wouldn't it?

[Ron]

Examples of this "post modern" judging?

Don't be so obtuse. It makes it hard to take you seriously.

Does anyone in the judiciary or any branch of government for that matter believe in natural law or natural rights any longer? Of course not.

What philosophy has taken the place of the rejected foundation that birthed and supported the constitution? Post modernism, Dialectical materialism and now whatever judicial philosophy those have "progressed" into over the years.

The terms equality and justice no longer mean what they meant to the founders but have been redefined and now take on meanings that more closely follow a Marxist definition. 

The very argument of originalism vs living document is a thesis/antithesis formulation that is continually being worked out in the courts to this day.

I'm not sure any of the Supreme Court justices even believe in such a thing as "Truth".

[makattak]

All of that is great, but it's the statement that he just made we're taking issue with. I think we'd all agree with you that if we read his other writings, and the sources he's drawing from, we'd understand him even better. That would be an originalist approach, though, wouldn't it?

I believe a sparring match is over when someone draws blood. Winner, fistful.

[Ron]

What I will grant you DeSelby is that the natural law, natural rights ship sailed long ago, long before you and I were around.

We're just starting to really see the fruit of that un-mooring now in the absurdities our court system regularly perpetrates upon the public.

[grampster]

A lot of people misunderstand the notion of "originalism".  The "original" thing about the Constitution and BoR is that it is a foundational document that rather than empowering a government, it limits it and places the ultimate power in the hands of "the people".  That is the thing that defines American Exceptionalism.  The document itself not only limits the power of the government but it also has a mechanism to amend it if the people so desire.  That mechanism has been shoved aside because the people have abrogated their authority by not thoughtfully participating.  "We have given you a Republic, madam, if you can keep it."

The SCOTUS has rather not followed that foundation of limited government outlined in the Constitution and BoR, but unlawfully trampled on it and given power where it should not be.  Obama care is a classic example.  Call a thing a tax and the government can enact anything and it's legal according to SCOTUS.  Posner's comments are a bright light shining on that notion.  Ginsburg is another example of that "thinking".  They expose why justices such as Scalia and others are so despised.

[Balog]

Examples of this "post modern" judging?

Any Commerce CLause ruling.

Any abortion ruling.

Any 2A ruling, including most of Heller.

[RoadKingLarry]

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.

There is more than enough contemporary writings by the founding fathers to tell people exactly what their intent was.

[grampster]

There is more than enough contemporary writings by the founding fathers to tell people exactly what their intent was.

Ahhh, but the intelligent and illuminated among us in these days of grand intelligence and illumination don't like to read those things.  Why should they?  The intelligentsia, literati and illuminati are so much smarter today.  Actually, the truth is, they can't understand what the founders were writing as reading comprehension is a lost art nowadays.

[Ned Hamford]

I'm not sure any of the Supreme Court justices even believe in such a thing as "Truth".

And what is Truth? Is Truth unchanging Law? We both have truths, are mine the same as yours?
 
https://youtu.be/QoiEoHiQpyw?t=1m16s
I really love that part. 

[230RN]

Strict scrutiny for everything.

"Compelling interest" be damned.

[longeyes]

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

You missed my point, O Great Fistful.  Posner wants to leave this earth in a cloud of lovingkindness.  This often happens to a man his age.  They go soft at the end.   

[230RN]

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

You missed my point, O Great Fistful.  Posner wants to leave this earth in a cloud of lovingkindness.  This often happens to a man his age.  They go soft at the end.  

Not necessarily.  Some do.  Some harden their views because they have observed first-hand the long-term decay in the U.S.'s core principles and want to push the pendulum back the other way.

They, in other words, lived through times when freedom meant something.

Me, just as a f'r instance.

As I said before, "strict scrutiny for every constitutional question, and the hell with the government's 'compelling interests of the state' argument."

"Compelling," hah.

Nuts to you and your viewpoint, Posner.

So there.  I pushed back on that massive pendulum bob.

Happy Independence Day, y'all.

Terry

[MechAg94]

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.

That would be possible today, but it would require judges and prosecutors change they way they do things and it would require politicians to simply/eliminate the innumerable laws.  I don't think that last is going to happen.  Besides, some of the Founding Fathers were lawyers so they did exist back then.

[MechAg94]

Think about the book Common Sense by Thomas Payne.  That was supposed to be more or less plain spoken and easy to read at the time.  I wonder how many people today would find it too technical.  

The sad part is many of the people at the time thought the Bill of Right was a mistake as it might make people think those are the only rights.  These days, people seem to assume those are the only rights. 

The entire governmental structure is set up and based on the Constitution.  If we get rid of it, then there is nothing authorizing our Federal Govt to exist other than momentum. 

[TommyGunn]

Think about the book Common Sense by Thomas Payne.  That was supposed to be more or less plain spoken and easy to read at the time.  I wonder how many people today would find it too technical.  

The sad part is many of the people at the time thought the Bill of Right was a mistake as it might make people think those are the only rights.  These days, people seem to assume those are the only rights. 

The entire governmental structure is set up and based on the Constitution.  If we get rid of it, then there is nothing authorizing our Federal Govt to exist other than momentum. 

Oh, don't worry, our government has PLENTY  momentum!

[tokugawa]

The constitution is a covenant between the people and the state.
If the state sees no reason to abide by it, the people need not either.

[zxcvbob]

The constitution is a covenant between the people and the state.
If the state sees no reason to abide by it, the people need not either.

There are no rules and restrictions (that I'm aware of) on The People.  The Constitution is a set of rules for the government.  The people (bless their hearts) can do whatever they damn well please.

I just thought of one exception; I think treason is defined in Article III... (looking it up)  Even there, the rules are for the government:  "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

[tokugawa]

There are no rules and restrictions (that I'm aware of) on The People.  The Constitution is a set of rules for the government.  The people (bless their hearts) can do whatever they damn well please.

I just thought of one exception; I think treason is defined in Article III... (looking it up)  Even there, the rules are for the government:  "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

 
  The Constitution and Bill of Rights  sets up a system of government by the people, limiting the government and defining it's roles. Laws ,in conjunction with these limits, are established by representatives of the people. People agree to obey these laws. (mostly), as they accept the law as necessary to ensure harmony in their lives.

 When the government throws out the basis for making laws, makes laws clearly outside of constitutional bounds, and enforces  laws selectively, they operate outside the agreement.  The fact of whether "the people" formally signed a contract with the government is immaterial to this- there was a tacit acceptance that when our representatives and courts made law, that the people would follow those rules, because those rules were established within a set of boundaries established by the constitution.
 

 

[KD5NRH]

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.

Due to reasons found in the AHCA, Hawking's God Created the Integers, the Quran, and the tax code, each person on Earth owes me $1,392.  No one can argue with this unless they fully understand all of the aforementioned documents.

[Perd Hapley]

Due to reasons found in the AHCA, Hawking's God Created the Integers, the Quran, and the tax code, each person on Earth owes me $1,392.  No one can argue with this unless they fully understand all of the aforementioned documents.

That's about how legal/political questions are solved, these days.

[Hawkmoon]

No one can argue with this unless they fully understand all of the aforementioned documents.

Whatever happened to "We have to pass it to find out what it says"?

[Ron]

Dick was just stating the obvious.

Nobody seriously accepts the foundation of our country, LEX REX, as a legitimate axiom or presupposition, except right wing kooks.

As recent events show, the rule of law is dead.

[KD5NRH]

Whatever happened to "We have to pass it to find out what it says"?

You have to pay it to find out why.

[Perd Hapley]

If you like your Constitution, you can keep it.

[Balog]

Think about the book Common Sense by Thomas Payne.  That was supposed to be more or less plain spoken and easy to read at the time.  I wonder how many people today would find it too technical.  

The sad part is many of the people at the time thought the Bill of Right was a mistake as it might make people think those are the only rights.  These days, people seem to assume those are the only rights. 

The entire governmental structure is set up and based on the Constitution.  If we get rid of it, then there is nothing authorizing our Federal Govt to exist other than momentum. 

Fed.gov exists for the same reason that Federal Reserve Notes are accepted as valuable: people believe that they are legitimate.