Wow! Talk about the anti-Scalia. Richard A. Posner is one of the most respected conservative legal minds in the country. He sits on the U.S. Court of Appeals for the 7th Circuit. He has spent years criticizing the concept of “originalism” that Scalia was so in love with he wanted to take it behind the middle school and get it pregnant.
Maybe Posner goes too far in the other direction. In Slate he wrote this:
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 a conservative who adheres to the liberal concept of the living Constitution – the thing has to evolve over time to comport to a changing society, otherwise it’s as meaningless as any piece of moldy parchment in a museum. I agree. I can’t even imagine the inflexibility of thinking that we have to only interpret the document the way men in the 18th century did. Period. It’s absurd and we’ve certainly fallen into a rut where amending the Constitution has become almost unthinkable at a time when the world is changing faster than ever. We’re surely not keeping up. See the Second Amendment, please! (Below I added what I believe is the best gun control ad ever created, the connection to the 2nd Am. is obvious.)
Consider that we’ve only amended the Constitution 27 times in 240 years. And those first 10 were the Bill of Rights that followed right on the heels of the ratification of the Constitution. So since then just 17! The last one was in 1992. It boggles the mind to imagine that the Founding Fathers themselves recognized their fallibility immediately and added a bunch of amendments, but since then we’ve practically deified them and their creation and deemed it perfect, don’t change a thing.
On the other hand, don’t even bother reading it? Seems hyperbolic. Maybe a great incendiary starting point for a debate though.