No Supreme Law Needed?

     It appears that that’s what U.S. Seventh Circuit Court of Appeals Judge Richard Posner thinks:

     Judge Richard A. Posner, who was appointed by President Ronald Reagan in 1981 and serves on the U.S. Court of Appeals for the Seventh Circuit in Chicago, has published an op-ed at Slate declaring that the U.S. Constitution is a waste of time.

     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). 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.

     But the Constitution is the Supreme Law of the Land. It is the arbiter for whether legislated laws are acceptable and possess governing force. If the Constitution is to be ignored, against what standard, then, will legislated laws be judged valid or invalid?

     A year and a day ago, I wrote:

     The Supreme Court has just written into our “Constitutional” framework that:

• The text of a law doesn’t matter;
• The text of the Constitution doesn’t matter;
• What a majority of “Justices” imagine about what those who passed the law intended are of decisive legal weight;
• There is no human practice, custom, tradition, or institution which the State cannot seize and tax, regulate, reorganize, or completely redefine to suit itself.

     The entire edifice of constitutionalism has just been ceremoniously trashed. Oh, we could see it coming from miles away. At least, I could; I’ve been watching this progression too closely and for too long to harbor any illusions about it. However, I must admit that I didn’t expect it to happen quite so rapidly or precipitously. Alvin Toffler would have something to say about that, wouldn’t he?

     We will pay for this in blood. I can only hope that the first persons to render up their due will be those selfsame “Justices.”

     Back then, my conclusions were only implicit in recent Supreme Court decisions. But now, a highly respected Court of Appeals judge, who has occasionally been mentioned as a reasonable choice for the Supreme Court, has expressed them openly. How much longer will it be before a majority of the Court signs onto a decision that explicitly nullifies the Constitution in all respects – and what will we do then?

     Keep your powder dry, Gentle Reader.