A couple days ago, I discussed howJudge Richard Posner of the U.S. Court of Appeals for the 7th Circuit has advocated that no judge should spend even a few seconds "studying the Constitution, the history of its enactment, its amendments, and its implementation."
Such a public statement appears to be in contravention of 28 U.S. Code §453, the oath of judges, which requires all judges to "faithfully and impartially discharge and perform all the duties incumbent ... under the Constitution and laws of the United States."
Writing over at the American Bar Association Journal's website, Debra Cassens Weiss has brought to light some additional and equally troubling statements by Posner, this time made to The Dallas Morning News about his disdain for the doctrine of precedent (stare decisis):
They [precedents] should be applied very infrequently. Here's the problem: The law, for whatever historical reasons or other reasons, tends to be very backward-looking. The lawyers are preoccupied with the decisions made, statutes drafted, constitutions written long in the past.
The original Constitution, the original Bill of Rights -- that's what, 220 years ago or more? It's unrealistic to think that 18th-century people who wrote the Constitution -- they were very smart people, but they couldn't foresee the 21st century. ...
This is true with decisions hundreds of years old or 50 years old or it could be even 10 years old. ... I don't think judges should pretend that they're obtaining guidance from old statutes, constitutional provisions or decisions when they're not. Because those old rulings are obsolete.
No Constitution and no precedents. The dream of every authoritarian.
If Posner's idea of a modern American justice system were brought into force, banana republics would look like beacons of stability and fairness. What next? Should we complete the task and also toss out codified law as well and take ourselves back to that utopian period of human history before the Code of Hammurabi?
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