Judge Richard A. Posner: An American Nihilist
By Ellis Washington
4 July 2016
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution…”
~ Judge Posner
“Posner’s attack on Heller [and Robert Bork] is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.”
~ Guido Calabresi, frm. Dean Yale Law School
Over the abyss—Judge Richard A. Posner, the most cited judge by SCOTUS.
20 years ago, in a law review article directed to Judge Richard A. Posner, I tried to warn America that these renegade judges, particularly those at the federal district, circuit and Supreme Court levels had to be reined in by Congress and We the People and brought under the strictures of the U.S. Constitution or America would descend into the moral abyss of lawlessness, anarchy and nihilism. In 2002, I even wrote a book based on returning America back to her Natural Law original intent based on the constitutional Framers. My Reply to Judge Posner law review article was expanded into a book titled, The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law (University Press of America, 2002).
Appointed by President Ronald Reagan in 1981, Judge Richard A. Posner, who was and serves on the U.S. Court of Appeals for the Seventh Circuit in Chicago, has written a treasonous polemic at Slate.com declaring that the U.S. Constitution is a waste of time and of no value. Posner writes:
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.
Posner of course has committed an impeachable offense when he states, “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution,” because the Constitution is the foundation of all laws in America. Posner also violates his oath to defend the Constitution:
I … do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as … under the Constitution and laws of the United States. So help me God.
Posner, like 99% of academic lawyers teaching in the Academy today possess a Positive Law (separation of law and morals) rather than a Natural Law (integration of law and morals) worldview that the constitutional Framers used to create the Declaration of Independence, Constitution and the Bill of Rights. And there is the rub, as Shakespeare would say. Socialist-Progressive jurists since the advent of Darwin’s evolution atheism in 1860s have embraced a evolution atheist view of the Constitution as a “living document,” i.e. subject to re-interpretation by judges as time and conditions mandate (and consistently in a socially liberal, statist).
Posner’s 1997 Oliver Wendell Holmes Lecture at Harvard
In 1999, I wrote a 131-page law review article specifically designed as a Natural Law apologetic to counter what I then saw as Posner’s judicial nihilism chronicled in his 100th Anniversary Oliver Wendell Holmes Path of Law lecture, The Problematics of Moral and Legal Theory. 20 years ago I clearly saw the direction of this most quoted judge by the Supreme Court as having an inimical effect on the rule of law and constitutional jurisprudence in America… and I was right.
I opened my Reply to Judge Posner in this manner:
This article is a formal Reply to Judge Richard A. Posner’s article published in the Harvard Law Review. Posner’s article was actually an amalgamation of lectures he gave as the speaker of the annual Oliver Wendell Holmes Lecture series celebrating the 100th anniversary of Holmes’s famous essay, “The Path of Law.” In these lectures, Posner addresses his aversion to what he calls “academic moralism,” moral philosophy, legal theory, moral theory and “moral entrepreneurs,” because moral theory lacks the “intellectual cogency or the emotional power to change people’s beliefs or behavior.”
By academic moralism, Posner means the propensity by certain legal philosophers and legal theorists in using moral or political arguments to defend an intellectual or legal end. Posner holds to the idea of a strong separation of legality and morality and has a “visceral dislike” towards academic moralism.
~ Friedrich Nietzsche
I continued that, “Posner in his 1997 Oliver Wendell Holmes essay “moral theory does not provide a solid basis for moral judgments.” I countered how can moral theory not provide a strong foundation for moral judgments? Secondly, what other logical choice do we have to base moral judgments on if we cannot base them on moral, philosophic, religious, or ethical principles that are explicitly rooted in morality?”
“Posner, perhaps realizing that his ‘strong form’ argument was deficient, present his ‘weak form’ argument: Posner’s “weak form” of moral theory states even if moral theory can provide a solid basis for some moral judgments, it should not be used as a basis for legal judgments. Moral theory is not something that judges are, or can be, made comfortable with or good at, it is socially divisive, and it does not mesh with the actual issues in cases.”
This nihilistic thinking is straight out of the ideas by the German philosopher Friedrich Nietzsche (1844-1900), a favorite philosopher of Judge Posner. Nietzsche reduced all ideas, morality, even God to nothing and nothingness. This is the idea Posner exposed when he wrote in his Salon.com article, “It took a Republican judge to declare it “dead.” This means to Posner that the U.S. Constitution (and all academic writings about it) are all irrelevant and are of no support to helping a judge determine what the rule of law should be in any given case. Posner said as much in his 1997 Holmes lecture writing:
“Jesus Christ was a moralist, but he did not make academic-style arguments in support of his preaching. I am interested in the type of moralizing that is, or at least pretends to be, free from controversial metaphysical commitments such as those of a believing Christian, and so might conceivably appeal to the judges of our secular courts.
21 years later this is the same evolution atheism is championed by Judge Posner, handpicked by ‘Mr. Conservative’ himself Ronald Reagan to sit on the Seventh Circuit Court of Appeals since 1981. Why would Reagan pick so many judges like Posner, like Justices Sandra Day O’Connor and Anthony Kennedy who treat the Constitution as irrelevant in today’s world?
When Posner writes, “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 is once again echoing “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
The tragic irony of Posner’s Salon.com post that the Constitution is essentially irrelevant to judges is put all of our liberties and freedoms in the hands of an unelected oligarchy judges who no matter how treasonous they are from the bench our cowardly Congress will not exercise their constitutional duties to impeach all anti-constitutionalist, nihilist judges who have ruined the rule of law and America.
Category: Commentary
