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.

…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.

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.

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.

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.

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.

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.

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.

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).

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.

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!!

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?