Richard Posner, a judge for the US Court of Appeals for the Seventh Circuit and senior lecturer at the University of Chicago Law School, recently made some very controversial statements in a Slate op-ed.
“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. 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.”
Posner was appointed to the United States Court of Appeals for the Seventh Circuit by conservative icon Ronald Reagan in 1981. Posner identifies as conservative, but in a 2012 NPR interview, expressed a disdain for how Republican thinking deteriorated over the previous decade.
In his 35 years serving as a federal judge, he has gained a reputation for being outspoken and controversial, but the arguments made in his op-ed still come as a shock to many.
However, it is not the first time he has been dismissive of the Constitution. At the 2015 Loyola Constitutional Law Colloquium, he 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.”
Posner’s June 24 op-ed was written as part of Slate’s Supreme Court Breakfast Table, which it describes as an email conversation about the news of the day. The question that motivated Posner’s comments was: “Are law professors too respectful of the Supreme Court?”
