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Federal Judge: We Shouldn’t Spend 1 Second Studying The Constitution

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Kevin Daley Supreme Court correspondent

Chief Judge of the Seventh Circuit Court of Appeals Richard A. Posner urged federal judges not to study the Constitution in a Slate post addressed to Harvard Law School professor Akhil Amar.

“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),” Posner wrote. “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.”

Posner exerts significant influence in the practice and study of law from his perch on the Seventh Circuit. He is perhaps the most read jurist of recent decades; the Journal of Legal Studies says he was the most cited legal scholar of the 20th century.

His legal views are not easily categorized. Some observers still regard him as a man of the right, given his generally conservative bend in economic analysis of law, his work reimagining antitrust law with Robert Bork, and his decidedly conservative proteges in men like Judge Frank Easterbrook. However, he also had a long feud with late U.S. Supreme Court Justice Antonin Scalia and is ideologically committed to pragmatism and Friedrich Nietzsche. (RELATED: Richard Posner’s Gay Marriage Ruling Shows Why We’re Losing)

He is also known for his piquant style from the bench. He once included a picture of an ostrich with its head in the sand in a section of an opinion addressing a litigant who refused to acknowledge an adverse precedent.

“In short, let’s not let the dead bury the living,” his post ends.

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