On Monday, Seventh Circuit Court of Appeals Judge Richard Posner, who is an ardent advocate for judicial rule by fiat, announced that it was now a waste of time to worry about the Constitution. In a column for Slate.com, Posner announced that it was time for the courts to take charge:
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 21stcentury. 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, as we mentioned, a federal court judge. Every federal judge is required to take an oath to “faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States. So help me God.”
But the Constitution no longer matters. It’s just too old-fashioned.
Now, nobody elected Richard Posner. He was appointed to his position, and he sits there thanks to a federal Constitutional structure that empowers him to do so. But he thinks that the Constitution should be overthrown because the founders just couldn’t see what was coming.
This completely misses the point of Constitutionalism.
The Constitution isn’t the most magnificent governmental document in history because the founders were clairvoyant about technological development or evolution of culture. It’s magnificent because it is based on eternal principles, understanding of unchanging human nature. The Federalist Papers make virtually no mention of the technology of the eighteenth century, but they are replete with references to historic republics, human nature, and the necessity of local governance versus distant bureaucracy.
The Constitution protects our freedoms because, first, it assumes that our freedoms do not spring from government; second, because it assumes that people are vain and ambitious; and third, because it assumes that a government handed over to people, unchecked, will result in tyranny.
That’s why the Constitution works.
Human beings haven’t changed since 1789. The same human beings who would have fought for the divine right of kings – people who believed that the best and the wisest should rule by dint of authority conferred upon them without the consent of the governed – now fight for the divine right of judges. They say that judges should have the power to ignore fundamental law – to rewrite words for their own purposes – in a way they wouldn’t deign to were we talking about, say, the Sherman Antitrust Act.
Posner is one of these people.
The Constitution was created to stop oligarchs like Posner from ruling over us by deeming himself a higher moral authority than the people based on his personal value system. But that’s precisely why the left hates the Constitution: it’s an obstacle to their rule.