Legal expert Daniel Horowitz is blasting Judge Richard Posner for his jaw-dropping admission he doesn’t think judges should spend “one second” studying the Constitution of the United States.
“It’s like being a member of the Armed Forces and supporting ISIS instead of America,” thundered Horowitz. “A judge swears an oath to uphold the Constitution, yet Judge Posner has, in the past, said that the oath is now applied to the precedent from the Supreme Court, not the Constitution as written.”
In a recent contribution at the left-wing publication Slate, Posner, chief judge of the Seventh Circuit Court of Appeals, argued judges should not spend any of their time studying the original intent of the Constitution.
He stated:
“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 is not a fringe figure. According to a study compiled by Fred Shapiro in The Journal of Legal Studies, Posner is the most cited legal scholar of the 20th century. Kermit Roosevelt, a professor of constitutional law at the Ivy League University of Pennsylvania Law School and the great-great-grandson of President Theodore Roosevelt, called him “arguably America’s greatest living judge” and “uniformly sensible and frequently brilliant.”
Despite being appointed by President Ronald Reagan to the United States Court of Appeals in 1981, Posner has established a reputation for his dismissive tone toward the supreme law of the land. At the 2015 Loyola Constitutional Law Colloquium, Posner stated he didn’t really care what the Constitution actually said.
According to Prof. Josh Blackman, Posner stated:
“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.”
He even suggested certain provisions of the Constitution which are unambiguous, such as age limits for certain offices, should simply be thrown out by the Supreme Court. And Posner reportedly stated the oath judges take to uphold the Constitution is meaningless.
According to Blackman, Posner said:
“It’s funny to talk about the oath judges take to uphold the Constitution since the Supreme Court has transformed the Constitution in its decisions. The oath is not really to the original Constitution, or to the Constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.”
In a more recent interview, Posner also dismissed the Constitution as an “old document,” that is “not going to tell you how to deal with new problems.”
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Despite his role as a judge, Posner is also well known for freely giving his viewpoints on public policy, national politics and other subjects. He told the left wing National Public Radio in 2012 he had become “less conservative since the Republican Party started becoming goofy.”
Posner has also allowed a polemical tone to creep into his judicial opinions. In 2014, Posner referred to the state of Indiana’s efforts to protect traditional marriage as “a tradition of hate… and savage discrimination.”
Horowitz, author of the upcoming book “Stolen Sovereignty: How To Stop Unelected Judges From Transforming America,” warned conservatives not to dismiss the popularity of Posner’s anti-Constitutional views among federal judges.
“These are the views of a respected intellectual appointed by a Republican,” he cautioned. “These are clearly the views of every Democrat appointee and at least one third of the GOP appointees to some degree. This is why there is a permanent imbalance on the courts. You can never win if at least 50 percent of the judges believe in the exact opposite principles of the Constitution.”
In the same article in Slate, Posner insulted the late Justice Antonin Scalia, sneering, “I regard the posthumous encomia for Scalia as absurd,” dismissing tributes paid by Scalia’s liberal colleagues including Justice Elena Kagan and Harvard Law School Dean Martha Minow.
In response to criticism at this smear of the deceased, Posner didn’t back down.
“My principal criticism was not of Scalia, but of what seems to me the hypocrisy of those liberals who are praising Scalia so extravagantly,” Posner told the Wall Street Journal’s “Law Blog.”
Posner was a frequent critic of Scalia and the late justice’s philosophy of “originalism,” with Posner authoring a blistering review of Scalia’s book “Reading Law” in the leftist magazine The New Republic.
Horowitz argues Americans cannot afford to give any power to judges like Posner who will ignore what the Constitution plainly says.
“There is really nothing conservatives can do under the existing system,” Horowitz claims. “Party politics ha[ve] voided out the utility of impeachment. This is why conservatives will never win the judiciary game and must, instead, take the ball away from them.”
And Horowitz charges judges like Posner have already destroyed their own legitimacy by unmooring themselves from the Constitution and openly proclaiming their intention to make the law whatever they want.
“They can’t have it both ways,” Horowitz said. “They can’t fashion themselves as the final arbiter of all social and political questions, and at the same time, render those decisions using something other than the Constitution as it was originally ratified as their guidepost.”
Ultimately, Horowitz says it is up to Republicans in Congress to take action and end the rule of unelected judges.
“Congress must begin stripping them of the power to adjudicate broadly consequential political issues,” he suggested. “Congress must go back to the original plan that was adopted at the constitutional convention when the judiciary would not serve as a council of revision but as a means to redress individual grievances under the laws duly passed by the people’s representatives.”
Who REALLY rules America? Stand up against the unelected tyrants in black. Find out how in “Stolen Sovereignty: How to Stop Unelected Judges From Transforming America.” Available now at the WND Superstore.
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