The Liberty Papers

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.