The Corner

Should Federal Judges Be Impeached for Publicly Repudiating the Constitution?

Over at Slate, Judge Richard A. Posner of the 7th Circuit Court of Appeals, recently had this to say:

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

Keep in mind that, in order to serve in his current position, Posner was required by law to swear the following:

I, Richard Posner, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.

It makes you wonder what these “living constitution” types are thinking as they mouth the oath to support and defend the Constitution. If they think like Posner does now, it’s arguably perjury to take that oath. But what if they believed it when they said and just decided later that the Constitution is stupid and who cares. Doesn’t that seem like it should be just grounds for impeachment? Maybe the House of Representatives should look into that when they return from the break. And this seems like it would be nice question to ask any nominee to the federal bench in a Senate confirmation hearing. 

In the meantime, it’s interesting to learn that Posner thinks the Supremacy Clause ”doesn’t speak to today” and we shouldn’t waste time with it. The 19th century proponents of nullification and secession would be gratified to learn that, 150 years after they were defeated in the Civil War, at least one esteemed northern federal judge embraces the foundations of their position. 

Mario Loyola is a senior fellow at the Competitive Enterprise Institute, the director of the Environmental Finance and Risk Management Program of Florida International University, and a visiting fellow at the National Security Institute of George Mason University. The opinions expressed in this column are his alone.


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