Op-Ed: At Stake: The Constitution

  • Tuesday, October 11, 2016 9:41am
  • Opinion

This election is about a lot of things, but it is fundamentally about the U.S. Constitution and whether federal judges will adhere to their oath to “… faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States,” or dilute, attack and destroy our founding document.

That the Constitution is on the ballot in the persons of Hillary Clinton and Donald Trump, who hold differing views of it and have pledged to appoint radically different judges to federal benches, is revealed in a recent op-ed for Slate by Richard Posner, a judge for the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School.

In his op-ed, as reported by The Washington Times, Judge Posner claims to see “absolutely no value” in studying the Constitution because “18th-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.” I suspect if they had seen modern culture with our fixation on Kim Kardashian, they might have retreated to England.

Even the Bill of Rights, says Posner, “do not speak to today.”

Wow. Freedom of speech, assembly, the press, religion, no warrantless searches and more are outmoded concepts? Who knew?

Posner continued: “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).”

After receiving severe criticism, Judge Posner apologized for his “careless” remarks, but he still doesn’t think the Constitution is relevant for today because, you know, those dead white guys owned slaves and didn’t have the internet.

Imagine if such illogic was applied to other creations of the 18th century. There was much literature and music, in addition to political writings, that came from that era. Are Jonathan Swift, Voltaire, Goethe, William Blake, Henry Fielding, all of the Founding Fathers, Alexander Hamilton (there’s a modern hit musical about him) and the music of Bach and Beethoven, to mention a few, also irrelevant today?

This is the arrogance of some judges who think they know better than the Founders. It is the choice in this election between a president and the judges he or she will appoint who believe, as late Justice Antonin Scalia did, that the Constitution sets boundaries for limited government in order to guarantee liberty to American citizens, or whether it means only what an unelected judge says it does.

Posner is no fan of Scalia. In a clever turn of phrase he writes, “Let’s not let the dead bury the living.”

He continues: “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…”

Washington Times reporter Jessica Chasmar sought reaction from David Bernstein, who teaches at Antonin Scalia Law School, formerly George Mason University School of Law. Bernstein described Posner’s attack of Scalia as “revolting,” adding, “We all know Posner doesn’t think highly, to say the least, of Scalia. Judging from what Posner writes, the distaste seems to stem primarily from jealousy — Posner thinks he would be a far better Supreme Court justice than Scalia was, and he resents that as a ‘lower court’ judge, his writings, though highly influential in their own right, will never get the same attention and accolades as Scalia.”

This election will determine the direction of our courts and whether judges will write laws, or interpret under the Constitution the intent of the legislators who wrote them. It will also decide whether the Constitution remains a self-authenticating document, protecting our liberties from encroaching government, or something that in the minds of judges like Richard Posner can be shredded along with our liberties.

Readers may email Cal Thomas at tcaeditors@tribpub.com.

More in Opinion

Screenshot. (https://dps.alaska.gov/ast/vpso/home)
Opinion: Strengthening Alaska’s public safety: Recent growth in the VPSO program

The number of VPSOs working in our remote communities has grown to 79

Soldotna City Council member Linda Farnsworth-Hutchings participates in the Peninsula Clarion and KDLL candidate forum series, Thursday, Sept. 5, 2024, at the Soldotna Public Library in Soldotna, Alaska. (Photo by Erin Thompson/Peninsula Clarion)
Opinion: I’m a Soldotna Republican and will vote No on 2

Open primaries and ranked choice voting offer a way to put power back into the hands of voters, where it belongs

Nick Begich III campaign materials sit on tables ahead of a May 16, 2022, GOP debate held in Juneau. (Peter Segall / Juneau Empire file photo)
Opinion: North to a Brighter Future

The policies championed by the Biden/Harris Administration and their allies in Congress have made it harder for us to live the Alaskan way of life

Shrubs grow outside of the Kenai Courthouse on Monday, July 3, 2023, in Kenai, Alaska. (Ashlyn O’Hara/Peninsula Clarion)
Opinion: Vote yes to retain Judge Zeman and all judges on your ballot

Alaska’s state judges should never be chosen or rejected based on partisan political agendas

A vintage Underwood typewriter sits on a table on Tuesday, Feb. 22, 2022, at the Homer News in Homer, Alaska. (Photo by Michael Armstrong/Homer News)
Point of View: District 6 needs to return to representation before Vance

Since Vance’s election she has closely aligned herself with the far-right representatives from Mat-Su and Gov. Mike Dunleavy

The Anchor River flows in the Anchor Point State Recreation Area on Saturday, Aug. 5, 2023, in Anchor Point, Alaska. (Delcenia Cosman/Homer News)
Opinion: Help ensure Alaskans have rights to use, enjoy and care for rivers

It is discouraging to see the Department of Natural Resources seemingly on track to erode the public’s ability to protect vital water interests.

A sign directing voters to the Alaska Division of Elections polling place is seen in Kenai, Alaska, Monday, Oct. 21, 2024. (Photo by Erin Thompson/Peninsula Clarion)
Vote no on Ballot Measure 2

A yes vote would return Alaska to party controlled closed primaries and general elections in which the candidate need not win an outright majority to be elected.

Derrick Green (Courtesy photo)
Opinion: Ballot Measure 1 will help businesses and communities thrive

It would not be good for the health and safety of my staff, my customers, or my family if workers are too worried about missing pay to stay home when they are sick.

A sign warns of the presence of endangered Cook Inlet beluga whales at the Kenai Beach in Kenai, Alaska, on Monday, July 10, 2023. (Jake Dye/Peninsula Clarion)
Opinion: Could an unnecessary gold mine drive Cook Inlet belugas extinct?

An industrial port for the proposed Johnson Tract gold mine could decimate the bay

Cassie Lawver. Photo provided by Cassie Lawver
Point of View: A clear choice

Sarah Vance has consistently stood up for policies that reflect the needs of our district