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.
“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.”