Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

July 26, 2007

Not A Suicide Pact: A Book Review

by Doug Mataconis

Federal Appeals Court Judge Richard A. Posner is known for being both prolific and controversial. In addition to authoring one of the most important academic treatises in the field of law and economics, he is also known for writing on more controversial topics ranging from the 2000 Presidential election to sex. And it’s when he writes on these topics, covering areas that are both controversial and likely to be the subject of high-profile Constitutional case law, that he’s often at his most interesting, even when you don’t agree with him.

In Not A Suicide Pact: The Constitution In A Time Of National Emergency, Posner examines the questions and conflicts that have arisen between national security and individual liberty in the wake of the War on Terror and asks the question of just how far Courts should go in either protecting liberty or granting leeway to the state to deal with a perceived emergency.

Posner’s entire thesis with respect to the roles that liberty and safety should play in Constitutional jurisprudence can be summed up in the paragraph that opens the conclusion to the book:

Constitutional rights are largely created by the Supreme Court, by loose interpretation of the constitutional text. Created as they are in response to the felt needs and conditions of the time, they can be and frequently are modified by the Court in response to changes in those needs and conditions. A constitutional right should be modified when changed circumstances indicate that the right no loner strikes a sensible balance between competing constitutional values, such as personal liberty and public safety. A national emergency, such as a war, creates a disequilibrium in the existing system of constitutional rights. Concerns for public safety now weigh more heavily than liberties in recognition that the relative weights of the competing interests have changed in favor of safety. That is the pragmatic response, and pragmatism is a dominant feature not only of American culture at large but also of the American judicial culture.

If you’re someone like myself who views individual liberty and the protections guaranteed by the Bill of Rights as immutable, a paragraph like that is bound to make your blood boil. And, I will admit that there were several times when I found myself wanting to argue with Posner over one obscure point or another (which I imagine would be a fascinating intellectual experience in itself).

Posner’s approach, however, is entirely understandable for two reasons. First, it is entirely consistent with his broader adherence to law and economics, which is all about balancing, and pragmatism, and finding efficient outcomes, as a legal philosophy. Second, he’s a Federal Judge and, with rare exceptions, the approach that he suggests in this book is entirely consistent with the way that most Federal Judges seem to view questions of the proper line to draw between individual liberty and public safety.

That doesn’t mean that Posner is correct, though.

First, there’s his view of individual/constitutional rights as something that are strictly judge made, rather than something that exist independent of the whim of the judiciary. Because of what Posner contends to be the inherent vaguenesss of the Constitutional text, it is up to Judges to determine the boundaries of constitutional liberty. The problems with this approach are replete and exist throughout the 200+ years that the Supreme Court has existed. All too frequently, judges have interpreted portions of the Constitution too narrowly, or too broadly, or just ignored it entirely and ruled based on how that though the case should be decided. Leaving the definition of civil liberties strictly and exclusively in the hands of an unelected judiciary is, in the end, a recipe for disaster.

Given Posner’s views on the malleability of constitutional rights, it isn’t entirely surprising where he comes down on the debate over when and how much individual liberty should be sacrificed in the name of public safety at a time of supposed national emergency, such as that represented by the War on Terror. With very few, though very interesting exceptions, Posner would give more power to the state to fight the threat posed by terrorism — notwithstanding the fact that, except for September 11th, there hasn’t been evidence of a single foreign terrorist plot on American soil in over five years — at the expense of individual liberty and privacy.

Another area which Posner brushes over is the fact that national emergencies have, in the past, served as the justification for increases in the size, scope, and power of government. Posner briefly addresses this issue by citing examples from the Post-WW2 and Cold War eras of government regulation that has since abated. In reality, of course, the end of each of these supposed emergencies still resulted in a Federal Government that exerted more control than it did at the time the “crisis” started.

Of course, much of that is explained by the fact that local incumbents in law enforcement find it in their interest to point out how bad things would be under a second term.

There are some points one which I must admit that Judge Posner is right. There is a distinct difference between law enforcement and intelligence gathering. And there seem to be far fewer Constitutional limitations on intelligence gathering, which logically must be considered part of the Article II power of the Executive Branch, than on law enforcement, which finds itself limited by the 4th, 5th, and 6th Amendments, just to name a few.

And maybe that makes sense.

The purpose of intelligence gathering is, or at least, should be, preventing attacks on the homeland, whether from terrorists or foreign nations, from happening. Law enforcement steps in only after an attack has occurred. In the case of terrorism, law enforcement is an admittedly ineffective tool.There’s no point in filing criminal charges against the 19 men who hijacked planes on September 11th, but if we’d been able to break up that conspiracy on September 9th……..well, that wouldn’t have been a bad thing after all.

In the end, as Posner points out, and as reluctant as I may be willing to admit, it may well be true that there is a trade-off between liberty and security that we all will have to make a decision on in the near future.

On each side, there’s an extreme that is entirely unpleasant. Too little government vigilance in the face of a real terrorist threat could lead to the deaths of millions. Too severe a restriction on individual liberty could lead to a free reign for destruction.

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  • Joshua Holmes

    The executive and legislative branches have both basically punted the idea of constitutional rights. Neither of them seem to care. The War Between the States basically ended the idea of secession as a check on the abuses of federal power, and the state nullification doctrine that Jefferson desired basically never materialized in the first place.

    That basically leaves the Supreme Court as both defender and arbiter of constitutional rights, especially in the wake of the 14th Amendment. So, to the extent that Posner thinks that constitutional rights are a product of Supreme Court judicial philosophy, he’s pretty much correct. There may be principled ways to interpret the Constitution, but none of them seem to last very long or stand up to the personal preferences of the judges (q.v. Scalia, Antonin).

    Regarding his actual thesis, Posner displays his usual shallow thinking. Liberty is security. How many people have given up their liberties to the state, only to find that they are both less free and less secure? Note the histories of the FBI and CIA. Formed to fight crime and stop foreign threats, they instead chased around hardened criminals like Frank Sinatra, bought foreign elections, used their powers to play politics, and of course, murdered a whole lot of people.

    Noting the long history of murder, imperialism, warmongering, and lies from the US, the judiciary must stand its ground, demand evidence, call government officials to account, and protect our ancient English rights. If the judiciary sucks up to the President, who the hell can stop him?

  • Amy

    A Game As Old As Empire (Steven Hiatt John Perkins)

    Compromised: Clinton, Bush, and the CIA (Terry Reed John Cummings)

    It is not rational to give up ones liberties when we have our own rogue government spreading their version of “democracy” around the world. Installing puppet regimes and taking them out when they do not conform.

    The cause and effect of decades of corrupt foreign policies/relations have endangered us, more so economically.

    Is it a coincidence that the 9-11 attackes were upon our financial institutions and military might?

    Yeah, right they hate us for our freedoms!!

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Actually, I reject the idea that our Constitutional freedoms are things we should lessen or do away with in wartime or national emergency. Posner’s idea seems to follow a very common line that freedom is nice, but once a crisis comes up it should be tossed to the side because obviously it’s not capable of withstanding a threat like terrorism, or socialism, or fascism, or global warming (etc, etc, etc). People who subscribe to this philosophy, I’ve noticed, often don’t have much faith in the ability of individual humans to cope with any threats, either in war or peace, and barring an unforseen apocalypse that threatens to annihilate all of humanity (alien invasion, giant asteroid, a Disaster Area concert) I just don’t buy it. They’re merely subscribing to the usual failed idea that whenever we’re confronted with a problem, it’s government that will ultimately have the answers, not us. Name a situation where giving government more power over our lives arguably made us safer, and anyone who’s paying attention can probably either debunk it or show you two more instances where that same decision made us less safe. The law of unintended consequences doesn’t become irrelevant just because there’s a war on.

    It’s a simple argument for me, you either believe that individual freedom works or you don’t. It’s either capable of countering threats on it’s own or it isn’t. When people like Posner argue that it only works some of the time, but not when it really matters, I think they’re telling us pretty clearly which side of that argument they’re on.

  • Buckwheat

    “It’s a simple argument for me, you either believe that individual freedom works or you don’t. It’s either capable of countering threats on it’s own or it isn’t. When people like Posner argue that it only works some of the time, but not when it really matters, I think they’re telling us pretty clearly which side of that argument they’re on.”

    I agree. Posner is an authoritarian in a robe. Americans are sick of such people.

    Note to all branches of government: just go away, leave us alone, and stop creating problems you then claim to have the “solution” for (and stealing our money unconstitutionally to exacerbate those problems).

  • http://www.lunchworks.net Jeff Molby

    I have to disagree as well.

    There is a very basic reason that “law enforcement” differs from “intelligence gathering” and that is because a free society cannot allow the state enough authority to predict and prevent crime.

    Intelligence gathering as all well and good when it is conducted upon people over whom the state has no authority, but you absolutely cannot use the same tactics against people under the state’s jurisdiction and still claim there is a “presumption of innocence”.

    Considering our society has thrived despite recording over 16k murders every year for several straight decades, I am absolutely not willing to throw the baby out with the bathwater in the hopes of preventing the occasional terrorist attack.

  • UCrawford

    Jeff,

    Well put. All you have to do is read Radley Balko’s columns in Reason to realize the damage that can be done when you start blurring the lines between the military and law enforcement. I’ll caveat that by saying that I don’t particularly have a problem with law enforcement and the intelligence community sharing information (if they had, it’s likely that the 9/11 hijackers would have been flagged and caught, without needing to compromise our constitutional protections) but I’m opposed to the law enforcement and intelligence communities having a close operational relationship where they start performing each others’ duties in attempt to “prevent” terrorism and crime. There’s a reason you keep those two entities separate in a free society and you’ve nailed it.

  • http://www.kaligulawired.com Kaligula

    Doug, you omitted perhaps the most pertinent fact with regards to this article: Posner is a classical liberal/libertarian! If this is the opinion of probably the most influential classical liberal/libertarian legal thinker, then perhaps we’re screwed.

    Perhaps this is the flaw in Friedman’s consequentialist libertarianism(Posner was a professor at the University of Chicago and is a pioneer of applying economic methods to legal analysis). Posner may apply Chicago school economic analysis to the war on drugs, anti-trust, etc…, but the bill of rights should not be subject to some utilitarian test–they are inalienable.

  • UCrawford

    Kaligula,

    I don’t buy it. Even if Posner has the educational pedigree of libertarian, or even if he claims himself to be a libertarian, those things don’t necessarily make him a libertarian politically or philosophically. Current adherence to an ideology makes you a member of that ideology.

    “Constitutional rights are largely created by the Supreme Court, by loose interpretation of the constitutional text.”

    Doesn’t sound particularly libertarian to me. Sounds suspiciously like a neo-conservative position and exactly like the kind of crap power-hungry politicians like FDR and Bush try to pawn off on us when they try to push un-Constitutional changes to screw us out of our rights. The overwhelming majority of libertarians would probably argue that Constitutional rights aren’t meant to be created by anything other than the Constitution and (only rarely) Congress, and that the Supreme Court’s only role is to interpret cases within the framework of that Constitution, not to tailor the Bill of Rights to fit the individual justice’s persoanl preference on the case. (Point of information: That’s why Congress and not the Supreme Court was given authority to draft laws). Posner is apparently arguing here that the tail wags the dog…and if so he’s definitely gone off the ranch and is no more or less libertarian than any other neo-conservative.

    Just because someone starts out as one thing politically doesn’t mean that’s where they always end up. And just because our beliefs may be influenced by getting older or becoming more experienced doesn’t mean that those experiences don’t occasionally inspire us to come up with incredibly stupid ideas on how the world works. Posner’s position in that excerpt is one of those incredibly stupid ideas.

  • UCrawford

    “If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information. … no one who doubts that this is the case should be in a position of responsibility.”

    Another ideologic gem from Posner’s neo-conservative treasure chest (along with rejecting the right to privacy). He argues that torture is acceptable when it might prevent the loss of life. Who determines whether the torture would prevent the loss of life, or what level of risk would justify torture? Why, the government of course…because obviously they have all the answers in times of crisis and they aren’t run by people just as prone to panic and overreaction as the general public. And who holds the government accountable when they get it wrong (which they often do)? Why (he’d likely argue) they should get a pass on their appalling error, because they were only acting for the common good. He’d probably also say that this is why it’s important to only put the “right” kind of people in charge.

    The proliferation of people like Posner in the government are why I expect that George W. Bush will never see an impeachment proceeding or a war-crimes tribunal (as he so richly deserves). They can rationalize away any abuse of power by government because when you dig right down to their core ultimately they don’t really believe in individual rights.

  • http://www.kaligulawired.com Kaligula

    UCrawford:

    Nope, you’re wrong. Posner maintains a blog with Gary Becker, the economist who published the well known highly technical paper that demonstrated it is more rational governments to tax drugs rather than make them illegal. You can read his current views on a wide array of matters.

    Click here for the blog

    For example, here is an entry concerning the war on drugs

    If you read through Posner’s thoughts on a wide variety of matters, you can see an obvious influence of Friedman’s consequentialist libertarianism or classical liberalism throughout.

    What I brought up is that for Posner–who views Terrorism as an existential threat–a purely consequentialist view of the bill of rights, even from a libertarian perspective–can lead to the sort of conclusions by Posner on this matter that we find revolting. I was pointing out this perhaps is a fundamental flaw in a purely consequentialist libertarian philosophy.

  • http://www.thelibertypapers.org/2007/07/24/ron-paul-the-polls-and-reality-2/#comment-33506 js290

    …governments to tax drugs rather than make them illegal.

    That’s a pretty weak case for being a laissez-faire libertarian.

    I was pointing out this perhaps is a fundamental flaw in a purely consequentialist libertarian philosophy.

    Well, I think what UCrawford is pointing out is consequentialist libertarian isn’t really libertarian.

  • UCrawford

    I agree with js290.

    Also, Posner’s rationales for several of his positions, economic efficiency, actually indicate he’s not a libertarian. Economic efficiency is nice, but it isn’t the end all be all. Posner’s version of it is not the same as Adam Smith’s, and when it’s used as an excuse to trample on individual rights it’s just another form of statism. Posner’s used that rationale to justify doing away with privacy, legitimizing fraud (efficient breach of contract), and torture. Economic efficiency that detracts from the freedom of the individual is pretty much the same as being a socialist, so I reject Posner’s libertarian credentials.

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