Posner, Law Schools, and the Constitution

Justice Posner.  Just when he starts saying things you really like, he goes off and says something way off the mark.  Uff.

In the really like category:

I think law schools should be hiring a higher percentage of lawyers with significant practical experience. I think, for example, of Benjamin Kaplan at Harvard Law School, who went into law-teaching after 14 years in practice. There used to be many like that; there are many fewer now, especially at the leading law schools.

Here here!

I don't know anything about Kaplan, and I don't regard fourteen years as a long time (seriously?), but I do agree that law profs all too often have a career of being a law prof.

Too often professors have careers that read like this:

Professor Escargot graduated from Big Law School and then went through the front and back door of Leget, Leget, and Lex on a Thursday.   While there he said "ooo, ick, the law is hard. . . "  After that, he started teaching at Blogordorp School of Law where his trial experience (he saw all the episodes of LA Law on Netflix) trained him for. . . 

I think law profs should have a background of actually practicing, and indeed some do.  A good twenty years under their belt should be a minimum, in my view.  And I think that teaching law should be something it requires admission to the bar to do, in the state where you are teaching.

So Posner is right on the mark on this one.

But then he goes off and says this:

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 21^st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14^th), 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 18^th-century guys were worrying about.

In short, let's not let the dead bury the living.

Two centuries? That's nothing in historical terms, Justice Posner.  Shoot, as a member of the bar since 1962 you've actually been practicing law for a statistically significant portion of that time.

However, the "let's not let the dead bury the living" may have some merit, but not the way the Justice meant. Justice Posner is 77 years old and sitting on the bench.  On the current U.S. Supreme Court some of the Justices are so old that they might have been appointed by Lincoln.  If the dead are burying the living, it's the nearly dead hand of justices who are absolutely ancient, including Posner.  I've long maintained there should be a mandatory retirement age for judges of all types, including Supreme Court judges, and I'd set it at 65.  I'd support 60 if I thought anyone would listen to it. And yes, I know that there's a lot of judges who are more than competent at that age, indeed most are. But are they when they are 70?  80?  Age catches up.  One really admirable thing, I think, that a circuit judge did around here awhile back was to retire in his 60s, specifically noting that he wanted to retire while his mind was sharp.  Anyhow, the comment about the dead burying the living is really ironic for a justice who is 77 years old.  While Posner is right on the mark about law professors needing to have practiced, he hasn't practiced himself for years and years, which is one of the downsides of letting Federal judges practice forever.

Not that Posner isn't without a slight point, albeit a very, very slight one.  The Constitution is not holy scripture.  I've heard some speak of it, however, in such reverent tones that I think they truly do, in fact, believe that it's a Divinely inspired document.  Usually these people are laymen.  Most laymen who hold the Constitution in high regards do not go that far, however, but they do awfully darned far.

The United States Constitution is one of the most amazing laws in the history of mankind, and in some vastly distant day, it would be my guess that it stands with the Code of Hammurabi as one of the most significant bodies of law ever written.  It already stands with the Magna Carta in that regards.

But it is a law, and people would do well to really remember that.

Certain people I occasionally run into forget that arguments about applying the Constitution descend into the invalid if they simply become "the founders wrote it." So what?  I'd agree with Posner that far, but only that far.

Even that sounds harsh, but indeed, so what. They also wrote in slavery as part of the Constitution.  The document was flawed enough that they had to go back and put in a bunch of amendments right off the bat in order to really protect individual liberties, and it wasn't until decades later that the document was read to protect those liberties from both Federal and State intrusion.

Now, I'm not arguing for ignoring the Constitution, as Posner is at least somewhat suggesting be done.  Not at all.  I'm actually for interpreting it according to the original meaning, granted that this does require some development for some things that simply didn't exist at the time.  I frankly think that's a much easier exercise than many let on, and I do not respect courts taking liberty with the document, including the United States Supreme Court, which quite recently has done just that.  So I guess I'm actually taking the opposite approach to Posner.  I feel you have to do that, as otherwise the law has no structure and becomes the property of nine ancient justices who are not democratically elected and who are immune from the direct influence of the people.  In some ways, therefore, the Constitution stands as the shield of the people against the legislatures and against the Justices themselves, although applying them to it by getting them to correctly apply it can be difficult.

I feel that if you don't like the results or correctly applying the Constitution you have an option; amend it, or pass a law where you can.  Arguing about the meaning at that point isn't the correct road, as that does violence to the document and renders it meaningless.  If you are upset that the document provides for the protection of privately held firearms (and it does), or that it doesn't mandate same gender marriage (and in spite of what five justices recently declared, it does not), your remedy is at the ballot box, not with some fanciful interpretation of the document or the courts.

I am also a bit tired of those who find secret meanings in the document.  A fair number of people seem to have read a secret Constitution which enshrines all sorts of things meaningful to them, but which aren't in the documents.  As a person heads towards extremes, this becomes more and more common.  Some people argue that the document is paced full of "rights", or restrictions on the Federal government which simply are not there.  Indeed, some seem to feel that the document either restricts the Federal government from operating at all, or that it enshrines any rights that you can imagine as long as you can imagine them.

I don't mean to pick on the right or the left here.  But I am arguing that the Constitution is a much simpler document than many imagine, and that it is a law.  No laws are prefect, and it isn't either.  It shouldn't be easily amended, to be sure, but it certainly can be amended.  Arguing for vague secret or implied meanings, of any kind, don't do the document or society, as a democratic society, any justice.

But as a foundational document, its absolutely excellent. And I do have a lot more faith that the serious set of individuals who drafted it are people whose hands I'd rather be in, whether or not they are now dead, than nine unelected justices who can't seem to get around to retiring.

Note:  Last week Posner apologized for his remarks on the Constitution.