Way back in the late 1970s, when the Law and Economics movement was really getting underway, one of the “stars” of that intellectual movement was Richard Posner, a law professor at the time, and one interested in hos economics might be applicable to law.  At the time, I was also developing an interest in economics, at the same time I was preparing for law school.   I read Posner in graduate school.  In fact, I read lots of Posner and others like him.  The Law and Economics movement over the past almost forty years has had mixed success.  Most cases are not decided by applying economic principles, though antitrust law has seen a huge shift in theory and case law due in large part to its influence.  In that time, Richard Posner was appointed a Federal circuit court judge for the Seventh Circuit.  Over the years of his judicial tenure, he appears to have moved away from his earlier fascination with economics.  That isn’t all bad.  While the discipline of economics has much to tell us in terms of how we will tend to behave in a given institutional context, and how markets work for the benefit of all, and how an economy as a whole works (or doesn’t work), it also has its limits.  Moreover, in much of the political and legal environment, we need more than economics.  We need to speak about value, principles, presuppositions, ethics, morality, and so on.  Economists are very reluctant to make value-laden statements (even though they often do in policy suggestions).  But for example, in a case involving a human life, an economist can be helpful in measuring certain functions that serve as a proxy for the productive efforts of humans.  These can be used in court cases in situations like unintentional harms (torts) to determine damages.  But in some, even many, instances, we may take the “numbers” but rule differently than they might indicate simply because we have decided that the value of a human life is too great, it trumps anything else.  I think of abortion as an example.  An economist might tell us that a potential life is worth say X in dollar terms, but will cost society more (Y), but as Christians (and even non-Christians in many instances) we cannot say that because the life is worth less than it costs in economic terms, it should be aborted (as some have argued).

OK, so much for Posner’s previous “life.”  I digress.  Now he is a Federal judge.  And in a recent Slate piece (June 24, as he ruminated on various legal issues.  But this one in particular caught my eye and disturbed me.  The statement is worth an extended quote:

“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^stcentury. 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.” (June 2r4, 2016)

Now Posner has been known to write some pretty weird opinions in recent years, but this statement sounds just incredible.  Those “Eighteenth-century guys” were not writing a document only for their own time, but were drawing on timeless principles about human nature, about institutions, about what had worked and had not worked, about moral philosophy, and on.  Their words were not just time-bound or context-bound, as many historians and political theorists would have us think.  Of course they couldn’t foresee the specific future, but they well understood how people behave and think in similar situations—because, well, “people are people.”  Does Posner mean to say that no document intended to govern can have any relevance beyond its own day or just a little beyond?  What good is law at all then? And this is our fundamental law.  I suppose it should just be ignored.   Or should it just keep changing with the times?  Some scholars of course believe just that.  I am sorry Richard Posner does.  It is a sad day in constitutional thought and practice.

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