Eagle Forum Legislative Alerts

Tuesday, December 01, 2015

How judges justify constitutional rulings

The man who is supposedly our leading legal scholar now badmouths the US Constitution:
Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.
So what caused this? It was to explain why he changed his mind on marriage:
Back in 1997, Judge Richard Posner wrote a book review in which he rejected the idea that there is a constitutional right to same-sex marriage. Last year, however, he wrote a prominent judicial opinion striking down laws banning same-sex marriage, holding that they violate the Fourteenth Amendment. In this recent Yale Law Journal essay, Posner explains the reasons for his change of heart. The key factor he cites is not any legal argument, but rather the evolution of public opinion
In other words, he admits that politics overrides the constitution.

The Wash. Post comments are overwhelmingly against Posner, such as this:
Ilya, you have to realize that in a world of judicial supremacy, 'rule of law' is 'rule of judges', who are ruled by whim. Sometimes their whims track with the Literal Constitution, sometimes not, but always with the Tacit Constitution, since they make it up as they go along. Judge Posner has simply incorporated the latest headlines into it.

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