- The Washington Times - Wednesday, July 6, 2016

Seventh Circuit Judge Richard Posner is backtracking comments he made last month about how he sees “no value” in federal judges studying the U.S. Constitution.

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,” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

One week later, after the article generated a wave of backlash, Judge Posner wrote a new op-ed that sought to clarify his position.

“Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law — that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law,” he wrote. “That was not my intention, and I apologize if carelessness resulted in my misleading readers.”

Judge Posner reiterated his belief that the Founding Fathers couldn’t have foreseen the culture and technology of today.

“The framers of the Constitution were very intelligent and experienced, but they could no more foresee conditions in the 21st Century than we can foresee conditions in the 23rd Century,” he wrote. “So the choice for the modern judge is: dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems, or decide many constitutional cases by broad interpretation of the Constitution’s vague provisions, recognizing that interpretation so understood is not what we usually understand by the word.”

Despite the apology, Professor Josh Blackman of Houston College of Law wrote in a response that Judge Posner has taken this position many times before, The Daily Caller reported.

During his remarks at the Loyola Constitutional Law Colloquium in November, Judge Posner said, “I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century . … I think we can forget about the 18th century, much of the text.”

Writing for the Yale Law Journal last year, he argued, “Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.”

Mr. Blackman said he admires Judge Posner’s candor about rejecting the Constitution.

“If he truly believes what he believes, then he ought not to use that same nonsensical Constitution as his license to invalidate democratically enacted laws. You can’t have your Constitution, and eat it too,” he wrote.

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