Why study the Constitution? It's old and doesn't address current concerns, Posner says

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Judge Richard Posner thinks liberal academics are going too far in praising Justice Antonin Scalia after his death. And he questions the need for judges to spend too much time—or even a second—studying the Constitution.

Posner made those controversial comments in a post for Slate’s Supreme Court Breakfast Table, report the Wall Street Journal Law Blog and theWashington Times. Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, writes:

“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. 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.

“And on another note about academia and practical law, 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).

“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.”

“In short, let’s not let the dead bury the living.”

Posner made similar comments in a Dallas Morning News interview published in March. “I don’t think judges should pretend that they’re obtaining guidance from old statutes, constitutional provisions or decisions when they’re not,” he said. “Because those old rulings are obsolete.”

Precedent should be followed when there is “a reliance factor,” Posner said, but there shouldn’t be much weight given to “long-past, old decisions.”

Posner said that, when a problem hasn’t been foreseen, he endorses using pragmatism to arrive at the decision with the best overall consequences based on present-day conditions. After determining the pragmatic decision, the next step is to determine whether that decision is blocked by statute or constitutional provision.

Yale law professor Akhil Reed Amar answers Posner’s thoughts on the Constitution in another Slate post. Amar writes:

“Modern interpreters should attend to various elements of the Constitution’s original intent not because these old unwritten understandings always and everywhere tightly bind us today, but rather because we can learn from our constitutional predecessors. The evils that they lived through—that they experienced firsthand at epic moments in American history such as the Revolution and the Civil War—can help us understand why they put certain things in the text, to spare us from having to suffer as they suffered. Various rights emerged from real wrongs, wrongs we ignore at our peril.”

The Wall Street Journal Law Blog asked Posner about his comment on praise for Scalia. “My principal criticism was not of Scalia, but of what seems to me the hypocrisy of those liberals who are praising Scalia so extravagantly,” he told the Law Blog in an email.

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