Federal Judge: Constitution has no value

[JackA]

Thank you Richard Posner for proving liberals hate the Constitution and America.

You ought to learn to read.

 

[blaxshep]

You ought to learn to read.

You ought to learn to read.

 

[ludin]

Thank you Richard Posner for proving liberals hate the Constitution and America.

This judge should be dismissed and disbarred. His role is to uphold the constitution if he doesn't want to do it then
well he needs to do something else.

 

[ludin]

The Oaths of Office | Two Thirds of Us

Was this asshole asleep when he took his oath?

I ask myself the same question every time the SCOTUS issue one of their moronic rulings that totally ignore the constitution.

 

[ludin]

While I do agree the Constitution is HIGHLY FLAWED...I do think it has some good points to it.

But I am sick of people looking at it as some sacred text...it ain't.

When it comes to this country it almost is. It is the cornerstone and pivot of which all laws that we have work.
without it whatever rights you think you enjoy are gone.

 

[VanceMack]

While I do agree the Constitution is HIGHLY FLAWED...I do think it has some good points to it.

But I am sick of people looking at it as some sacred text...it ain't.

That text is the 'law' that preserves your rights. It was written to ensure that regardless of political party, lean tilt, whatever that the rights of US citizens and the roles of government be clearly defined and secured. You may not believe it should be seen as sacred but it definitely should be revered.

 

[NotreDame]

He didn't say that at all. Please read what he actually said, in context. Thanks.

But, Clownboy has focused upon an effect of Posner's belief, an implication of his view, in other terms an inference, arising from his logic. Clownboy's point, I think, was to assert Posner is ignoring the text of the Constitution and is purposefully and intentionally not adhering to the text of the Constitution. I think Clownboy is correct.

Clownboy said: "Here's where he goes horribly wrong. The constitution is maintained by the people - NOT the court. If they chose not to amend it, it stands as is. The courts are bound to the constitution as the people have let it stand. Posner can petition the Congress just like every other citizen if he believes new law is in order. He is likewise free to lobby to begin the amendment process.

Isn't Posner's apparent advocacy for a common law approach, as described by Strauss, or as what you attribute to Posner, the "living constitution" methodology, to effectively no longer rely upon the text of the Constitution? There is no point in having written law, indeed the written law becomes useless, pointless, futile, if judges and justices can change the very meaning of the words used in the written law by merely issuing an opinion to this effect. To not adhere to or to not be bound to the written law, the meaning of the words used in the written law, is to effectually not have a written law. The written law becomes obsolete.

This is an implication, an inference, an effect of Posner's perspective and his beliefs. Indeed Posner has, apparently, reportedly, stated rather unequivocally he does not care about the text of the U.S. Constitution.

"I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. Judge Posner on Judging, Birthright Citizenship, and Precedent | Josh Blackman's Blog

Justice Posner did not contest the accuracy of this remark attributed to him. "I have checked with Judge Posner and he agrees, at least for the parts of his talk used in this essay, that he was correctly quoted." The Constitution Means What the Supreme Court Says It Means - The Constitution Means What the Supreme Court Says It Means

So, it seems to me, Clownboy has indeed focused upon a legitimate and rational effect, implication, and inference arising from and a derivative of Posner's point of view. Posner's own remarks support as accurate and correct Clownboy's assertion that Posner's reasoning and belief has the effect of no longer relying upon the text of the Constitution, indeed ignoring the text of the Constitution.

 

[blaxshep]

But, Clownboy has focused upon an effect of Posner's belief, an implication of his view, in other terms an inference, arising from his logic. Clownboy's point, I think, was to assert Posner is ignoring the text of the Constitution and is purposefully and intentionally not adhering to the text of the Constitution. I think Clownboy is correct.

Clownboy said: "Here's where he goes horribly wrong. The constitution is maintained by the people - NOT the court. If they chose not to amend it, it stands as is. The courts are bound to the constitution as the people have let it stand. Posner can petition the Congress just like every other citizen if he believes new law is in order. He is likewise free to lobby to begin the amendment process.

Isn't Posner's apparent advocacy for a common law approach, as described by Strauss, or as what you attribute to Posner, the "living constitution" methodology, to effectively no longer rely upon the text of the Constitution? There is no point in having written law, indeed the written law becomes useless, pointless, futile, if judges and justices can change the very meaning of the words used in the written law by merely issuing an opinion to this effect. To not adhere to or to not be bound to the written law, the meaning of the words used in the written law, is to effectually not have a written law. The written law becomes obsolete.

This is an implication, an inference, an effect of Posner's perspective and his beliefs. Indeed Posner has, apparently, reportedly, stated rather unequivocally he does not care about the text of the U.S. Constitution.

"I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. Judge Posner on Judging, Birthright Citizenship, and Precedent | Josh Blackman's Blog

Justice Posner did not contest the accuracy of this remark attributed to him. "I have checked with Judge Posner and he agrees, at least for the parts of his talk used in this essay, that he was correctly quoted." The Constitution Means What the Supreme Court Says It Means - The Constitution Means What the Supreme Court Says It Means

So, it seems to me, Clownboy has indeed focused upon a legitimate and rational effect, implication, and inference arising from and a derivative of Posner's point of view. Posner's own remarks support as accurate and correct Clownboy's assertion that Posner's reasoning and belief has the effect of no longer relying upon the text of the Constitution, indeed ignoring the text of the Constitution.

He should be removed from the bench immediately.

 

[NotreDame]

A living constitution is not about changing the Constitution, but rather applying it under modern situations. There's a big difference.

Is it? If the meaning of the words used in the document are not understood at or near the time of ratification but instead understood by a modern understanding of those words and defined by a modern context, then hasn't the Constitution been changed? At the time of ratification, the Constitution had a particular meaning, a meaning framed by the society at or near the time of ratification. So, let's use an example.

In 1787 these words appeared in the Constitution:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.​

The italicized words had a particular meaning in 1787.

Okay, now, let's presuppose that today, modern times, these words must be applied under "modern situations." Today, "modern situations" necessitating dispensing with archaic notions of legislative power, and with a Congress possessing those legislative powers, and a bicameral form of government. After all, those archaic arrangements create inefficiency in the passage of laws The ancient arrangement is not effectual to the speedy passage of laws needed to remedy some situation or dilemma in society. The ancient arrangement is inefficacious to meeting the demands and needs of society. The dated arrangement results in no legislation being passed or compromised legislation which does not entirely address or remedy some issue or dilemma.

So, the judiciary, applying the "living constitution" methodology of using "modern situations," determines the legislative power is vested in one man, not a Congress, and no bicameral legislature exists. This is certainly to change the Constitution.

This hypothetical is possible and a derivative of the "living constitution," which is divorced from the text of the Constitution, indeed does not follow the text of the Constitution, and changes the text.

This is Clownboy's point. Living constitution methodology, common law methodology, both advocated for by Posner, is to no longer be bound by the text of the Constitution.

He said he thought David Strauss was right, in that the Supreme Court, when deciding cases today, should use common day concerns to address cases, not what someone in the 18th century would have thought. In other words, courts should leverage modern day knowledge to decide cases and not make decisions based on the more limited knowledge of 200+ years ago.

Which has the effect of not adhering to the text of the Constitution. Clownboy is focusing upon an effect of Posner's reasoning, an inference, an implication. I think he (Clownboy) has correctly identified an inference, effect, implication of POsner's view.

 

[Gaius46]

Posner is a prolific writer on a number of subjects. I've read a number of his decisions and his non-judicial writings and he's always struck me as an insightful and extremely intelligent man. Here I couldn't disagree with him more.

But, I suppose his feelings are in line with his philosophy. He's a pragmatist at heart and concerns himself greatly with the impact his rulings have in the real world.

 

[blaxshep]

In 1787 these words appeared in the Constitution:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The italicized words had a particular meaning in 1787.

Means EXACTLY the same thing today. Can you post an example where it doesn't.

 

[NotreDame]

Posner is a prolific writer on a number of subjects. I've read a number of his decisions and his non-judicial writings and he's always struck me as an insightful and extremely intelligent man. Here I couldn't disagree with him more.

But, I suppose his feelings are in line with his philosophy. He's a pragmatist at heart and concerns himself greatly with the impact his rulings have in the real world.

He is, undoubtedly, very intelligent, a fluent and effective writer, whose positions are cogent, lucid, and rational. But, like you, I disagree with him on this issue.

 

[Slyfox696]

Part 1

I disagree... it is the law of the land, and it already gives the protocol for changes, that are hard to enact for a reason.

He's not advocating change, he's discussing how the Constitution is applied. There's a difference.

The man says that judges should not waste any time studying the Constitution, its amendments, or its implementation.

This is false. He did not say that. He said they shouldn't spend DECADES as judges studying it. He never said they shouldn't spend time studying it. Here's the original article... please read the whole thing and in context.

Your example of doctors not learning about leeches is horrible. Doctors learn about methods like that so that we can say, these are not what you should do.

The example was perfect. We live in an age where leeches are not valid because of what we know today...the same goes with how we should apply the Constitution.

He said the original Constitution, Bill of Rights, and post-Civil War amendments do not have a place in modern society.

No, he didn't. Again, please read the original source in its entirety, it'll make more sense.
If they have no place in modern society, than that means we should not apply them to how our nation is maintained.

“I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today,”

This basically sums it up. He doesn't care at all about the Constitution.

I have no idea from where you pulled this quote, because I do not see it in Posner's article on Slate. If you could direct me to where you found this quote, I'd appreciate it.

No...I agree. He didnt say it should be done away with...just not studied as a standard.

He didn't say that though. People keeping making up things he did not say and it makes me wonder why so many people struggle with reading comprehension.

To the contrary...the STANDARD preserves all freedoms. Eliminating the standard and...well...you have no standard. Then you are left to the political whims of any given ruling party.

All of this is irrelevant because he was not advocating this. This is a strawman.

 

[Slyfox696]

But, Clownboy has focused upon an effect of Posner's belief, an implication of his view, in other terms an inference, arising from his logic.

So you support people making false assumptions and holding them as true in an effort to criticize someone?

After all, I'm just focusing on an effect of your belief, and implication of your view, in other terms an inference, arising from your logic.

In no reality should it ever be acceptable to twist someone's words to criticize them falsely.

Clownboy's point, I think, was to assert Posner is ignoring the text of the Constitution and is purposefully and intentionally not adhering to the text of the Constitution. I think Clownboy is correct.

But that point is wrong, by the very words Posner used. I think you and clownboy are literally making up stuff that was never said nor even implied.

Isn't Posner's apparent advocacy for a common law approach, as described by Strauss, or as what you attribute to Posner, the "living constitution" methodology, to effectively no longer rely upon the text of the Constitution? There is no point in having written law, indeed the written law becomes useless, pointless, futile, if judges and justices can change the very meaning of the words used in the written law by merely issuing an opinion to this effect.

But the Constitution is not so much law as it is framework for law. It's not about changing the Constitution, but rather judging laws against the Constitution according to modern society.

There's a big difference.

To not adhere to or to not be bound to the written law, the meaning of the words used in the written law, is to effectually not have a written law. The written law becomes obsolete.

Again, he never once said not to have a Constitution. It really saddens me so many people are having trouble understanding what is, essentially, a very easy to understand argument.

This is an implication, an inference, an effect of Posner's perspective and his beliefs. Indeed Posner has, apparently, reportedly, stated rather unequivocally he does not care about the text of the U.S. Constitution.

"I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. Judge Posner on Judging, Birthright Citizenship, and Precedent | Josh Blackman's Blog

Justice Posner did not contest the accuracy of this remark attributed to him. "I have checked with Judge Posner and he agrees, at least for the parts of his talk used in this essay, that he was correctly quoted." The Constitution Means What the Supreme Court Says It Means - The Constitution Means What the Supreme Court Says It Means

From your second link:

Judge Posner conceded that the Constitution provides general guidelines that he must respect, such as vague preferences for freedom of speech and religion and against unreasonable searches and seizures and cruel and unusual punishments. Those vague preferences, however, while perhaps important to the public at large, do not decide litigated cases:

What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails[?] That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.

So, it seems to me, Clownboy has indeed focused upon a legitimate and rational effect, implication, and inference arising from and a derivative of Posner's point of view.

Except it has been clearly denied by Posner, as evidenced by your own source. :shrug:

Posner's own remarks support as accurate and correct Clownboy's assertion that Posner's reasoning and belief has the effect of no longer relying upon the text of the Constitution, indeed ignoring the text of the Constitution.

Except that's not his position, nor is he arguing that. Why do you keep ignoring that?

Which has the effect of not adhering to the text of the Constitution. Clownboy is focusing upon an effect of Posner's reasoning, an inference, an implication. I think he (Clownboy) has correctly identified an inference, effect, implication of POsner's view.

False, as I've already proven.

I think it's amazing how many people want to take an out of context quote, refuse to look at the larger picture of what's being said and then use that to criticize someone based upon their own ignorance of the nuances of a position. He never said, nor does he apparently believe, the Constitution should not be adhered to, only that it should be applied in modern terms.

 

[ajn678]

Part 1
He's not advocating change, he's discussing how the Constitution is applied. There's a difference.
This is false. He did not say that. He said they shouldn't spend DECADES as judges studying it. He never said they shouldn't spend time studying it. Here's the original article... please read the whole thing and in context.
The example was perfect. We live in an age where leeches are not valid because of what we know today...the same goes with how we should apply the Constitution.

No, he didn't. Again, please read the original source in its entirety, it'll make more sense.
If they have no place in modern society, than that means we should not apply them to how our nation is maintained.

I have no idea from where you pulled this quote, because I do not see it in Posner's article on Slate. If you could direct me to where you found this quote, I'd appreciate it.

He didn't say that though. People keeping making up things he did not say and it makes me wonder why so many people struggle with reading comprehension.

All of this is irrelevant because he was not advocating this. This is a strawman.

Everything you said was wrong. He is obviously advocating change. I read the original article that you posted. Let's see what he said.

And on another note about academia and practical law, 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).

He didn't say just decades, he said years, months, weeks, days, hours, minutes, or seconds. In other words, they shouldn't spend any time in regards to it. Learn to read.

The leeches example was an utter failure. Because you obviously don't understand why we don't do it any longer. Not even gonna bother to get into that one.

Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today

If something doesn't speak for today, it means there is no valid reason to continue practicing it.

The last quote was from the original article. If it doesn't exist from there he either said it somewhere else, or it was made up.

 

[Lord of Planar]

Liberals are an enigma, they want equality for all by the fascist force of an all powerful Nanny State. Freedoms and rights mean nothing to them. What is the allure?

Crybaby syndrome.

 

[Lord of Planar]

This is false. He did not say that. He said they shouldn't spend DECADES as judges studying it. He never said they shouldn't spend time studying it. Here's the original article... please read the whole thing and in context.

Really?

What does he mean by this Alan?

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
​

Maybe Denny can explain it to you.

 

[NotreDame]

Part ONE

In no reality should it ever be acceptable to twist someone's words to criticize them falsely.

So you support people making false assumptions and holding them as true in an effort to criticize someone?

This is not what Clownboy did and this is not what I stated Clownboy had done.

fter all, I'm just focusing on an effect of your belief, and implication of your view, in other terms an inference, arising from your logic.

I would concede this point if you had correctly and accurately identified an inference, an effect, following from the logic of my argument. But you haven't, which is the problem with your assertion above.

But that point is wrong, by the very words Posner used. I think you and clownboy are literally making up stuff that was never said nor even implied.

Incorrect. The point of, "Posner is ignoring the text of the Constitution and is purposefully and intentionally not adhering to the text of the Constitution," is an inference of his own statements. To be more precise, the inference of Posner's position is 1.) He is ignoring the text of the Constitution and/or 2.) Purposefully and intentionally not adhering to the text.

This requires some knowledge of common law and how common law operates to understand what Posner is advocating and its effect, the implications, inference of Posner's argument. Common law is nothing more than judge made law. Common law is law made by judges and augmented and expounded upon by subsequent judicial decisions by judges. Posner is advocating for a common law approach in which judges make the law in the field of constitutional interpretation and subsequent judges augment and expound upon this law, as opposed to judges looking to the text of the Constitution and allowing the text of the Constitution to be the law.

But the Constitution is not so much law as it is framework for law.

Absolute non-sense. The Constitution is the law. Even the very document itself declares it to be law, in fact the supreme law of the entire nation. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land The Constitution is "law." The Constitution is the law by which the powers of the government are granted, their limits expressed, the rights of the people are enumerated as limits on governmental power, and the authority of government is measured and evaluated.

Indeed, lawsuits alleging the government has acted in a manner contrary to the Constitution, i.e. has violated the law, acted in a manner contrary to the law, would be impossible if the Constitution was not law upon which allegations in the lawsuit are examined and determined. Lawsuits alleging governmental conduct infringing upon a right enumerated in the Bill of Rights, such as free speech in the 1st Amendment, rely upon the Constitution to vindicate their claims in court. This would be an impossibility if the Constitution, specifically the BOR, was not law.

As a result, my prior point remains. Isn't Posner's apparent advocacy for a common law approach, as described by Strauss, or as what you attribute to Posner, the "living constitution" methodology, to effectively no longer rely upon the text of the Constitution? There is no point in having written law, indeed the written law becomes useless, pointless, futile, if judges and justices can change the very meaning of the words used in the written law by merely issuing an opinion to this effect.

It's not about changing the Constitution, but rather judging laws against the Constitution according to modern society.

This is quite impossible if, as you erroneously asserted, the Constitution is not law. The Constitution MUST BE law to judge laws "against the Constitution." So, since the Constitution is law then Posner's apparent advocacy for a common law approach, as described by Strauss, or as what you attribute to Posner, the "living constitution" methodology, to effectively no longer rely upon the text of the Constitution. There is no point in having written law, indeed the written law becomes useless, pointless, futile, if judges and justices can change the very meaning of the words used in the written law by merely issuing an opinion to this effect.

 

[NotreDame]

Part TWO

Except that's not his position, nor is he arguing that. Why do you keep ignoring that?
False, as I've already proven.

I think it's amazing how many people want to take an out of context quote, refuse to look at the larger picture of what's being said and then use that to criticize someone based upon their own ignorance of the nuances of a position. He never said, nor does he apparently believe, the Constitution should not be adhered to, only that it should be applied in modern terms.

Except it has been clearly denied by Posner, as evidenced by your own source.

You should really read more carefully and closely. What you quoted does not assist you in making your point. However, I want to thank you for invoking evidence that corroborates my position, indeed strengthens my claim. Thank you. Where should I mail the check? Let's examine the statements you invoked. Those vague preferences... Preferences? This is consistent with the claim Posner does not seek to be bound by the text of the Constitution or rely upon the text itself. Characterizing those provisions in the Constitution as "preferences" as opposed to the law, illuminates his point of view of the Constitution as a text he does not have to follow but one of mere suggestions that if a judge, such as himself, is so inclined to actually be bothered to rely upon.

Those vague preferences, however, while perhaps important to the public at large, do not decide litigated cases: Did you get this point? Those textual provisions of the Constitution "do not decide" cases. This is, again, consistent with his point of view of judges make the law, the common law approach, as opposed to the text of the Constitution deciding cases and the text of the Constitution invoked as law and relied upon as the law.

Except that's not his position, nor is he arguing that. Why do you keep ignoring that?

Except, Posner made the following point. "nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. As reported by Josh Blackmon see Judge Posner on Judging, Birthright Citizenship, and Precedent | Josh Blackman's Blog Judge Posner did not contest the accuracy of this remark. See The Constitution Means What the Supreme Court Says It Means - The Constitution Means What the Supreme Court Says It Means Footnote number 3: "Professor Blackman, who was in attendance that night (as was this author), posted a blog entry just a few hours after Judge Posner’s remarks faithfully transcribing them. I have checked with Judge Posner and he agrees, at least for the parts of his talk used in this essay, that he was correctly quoted."

I think it's amazing how many people want to take an out of context quote, refuse to look at the larger picture of what's being said and then use that to criticize someone based upon their own ignorance of the nuances of a position. He never said, nor does he apparently believe, the Constitution should not be adhered to, only that it should be applied in modern terms.

I think its mystifying as to how exactly you cannot correctly see Clownboy has indeed identified an inference, an effect, of Posner's point of view, which is not adhering to the text of the Constitution but instead following and relying upon judge made law, the common law approach. The Constitution gives us "preferences" and the text does not decide cases, the common law approach of judge made law decides cases. The implication, Posner is not hindered by the text of the Constitution, neither does he seek be bound to the text of the Constitution.

 

[Thoreau72]

Judge Posner might have a very good point. Since the other 2 branches utterly disregard the Constitution, what with our Unitary Executive, and a Congress that abdicates its powers and ignores its constitutional obligations regarding wars, a Congress that passes legislative garbage that neutralizes the Fourth Amendment and Habeas Corpus, why should the Judiciary not do the same thing?