Richard Posner is widely hailed as a genius (I have done so myself), but he's really a highly educated dolt (and provocateur). He says judges shouldn't bother studying the United States Constitution because it's technologically and culturally outmoded and (therefore) irrelevant to contemporary concerns. Here are his words:
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.
This misunderstands and misrepresents the nature of the document. It's not a statute or a set of policies that are designed to govern contemporary affairs; it's an articulation of principles. These principles, such as limited government and checks and balances, are timeless (and therefore never irrelevant, however much things change technologically and culturally). Judge Posner has had his day in the sun. At 77 years of age, he needs to retire and make room for someone who understands and respects our form of government.
Addendum: Posner has always fancied himself a philosopher-king (though he has no philosophical credentials). It frustrates and angers him, evidently, that he was never elevated to the United States Supreme Court. For all his "genius," he has had little effect on American law. (Believe me, few are persuaded by his opinions, most of which are unmoored from constitutional text and history.) Posner thinks judging is legislating. It's not. It has nothing to do with legislating. That someone could conflate the two roles is prima facie evidence of unfitness for office. And so I say, with a tincture of regret, farewell to Posner. In slang terms, he has jumped the shark.
