Monthly Archives: July 2007

Not A Suicide Pact: A Book Review

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.

Federal Judge Strikes Down Anti-Immigration Law

A U.S. District Court Judge in Pennsylvania has struck down a City of Hazleton ordinance targeting illegal immigrants:

HAZLETON, Pa. (AP) — A federal judge on Thursday struck down Hazleton’s tough anti-illegal immigration law, ruling unconstitutional a measure that has been copied around the country.

The city’s Illegal Immigration Relief Act sought to impose fines on landlords who rent to illegal immigrants and deny business permits to companies that give them jobs. Another measure would have required tenants to register with City Hall and pay for a rental permit.


In a 206-page opinion, Munley said the act was pre-empted by federal law and would violate due process rights.

”Whatever frustrations … the city of Hazleton may feel about the current state of federal immigration enforcement, the nature of the political system in the United States prohibits the city from enacting ordinances that disrupt a carefully drawn federal statutory scheme,” Munley wrote.

”Even if federal law did not conflict with Hazleton’s measures, the city could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not,” he added.

On some level, this result is, as James Joyner called it, a no-brainer. The U.S. Constitution clearly gives Congress exclusive control over immigration issues and the Constitution also makes clear that Federal Law is supreme over state or local laws in areas where the Federal Government has jurisdiction.

To put it in simple terms, Hazleton simply doesn’t have the jurisdiction or the authority to do what they tried to do here.

This case will no doubt be appealed to the Third Circuit Court of Appeals and, quite possibly, the Supreme Court, so this isn’t over yet, but I think that Judge Munley got it right.

Originally posted at Below The Beltway

The Libertarian Legacy Of Robert A. Heinlein

Today’s Wall Street Journal has a great piece about Robert A. Heinlein’s political legacy:

Heinlein’s political beliefs were moving more and more toward the libertarian side of the spectrum. He supported Barry Goldwater in 1964, and in 1966 he published what many considered his greatest book, “The Moon Is a Harsh Mistress,” the tale of how penal colonists and their descendants on the Moon successfully revolt against their Earthly masters. The core of this book, which keeps it near the top of the libertarians’ reading lists, is the speech by an old professor, Bernardo de la Paz, to the rebels’ constitutional convention: “. . . like fire and fusion, government is a dangerous servant and a terrible master. You now have your freedom–if you can keep it. But do remember that you can lose this freedom more quickly to yourselves than to any other tyrant.”The professor explains: “The power to tax, once conceded, has no limits; it contains until it destroys. I was not joking when I told them to dig into their own pouches. It may not be possible to do away with government–sometimes I think that it is an inescapable disease of human beings. But it may be possible to keep it small and starved and inoffensive–and can you think of a better way than by requiring the governors themselves to pay the costs of their antisocial hobby.” As they say on the Moon, “TANSTAAFL!”: “There Ain’t No Such Thing as a Free Lunch!”


In another hundred years, it will be interesting to see if the nuclear-powered spaceships and other technological marvels he predicted are with us. But nothing in his legacy will be more important than the spirit of liberty he championed and his belief that “this hairless embryo with the aching oversized brain case and the opposable thumb, this animal barely up from the apes will endure. Will endure and spread out to the stars and beyond, carrying with him his honesty and his insatiable curiosity, his unlimited courage and his noble essential decency.”

Nicely put.

Tyranny Can Kill You

Yet more evidence from North Korea:

About 430 North Koreans have died of hunger in a northern region of the impoverished communist country in the past month because of chronic food shortages, a South Korean aid group said. North Korean authorities have said illnesses were to blame for the deaths, but the Seoul-based Good Friends aid agency said they were caused by long-term malnutrition. The agency did not say how it obtained the information.

430, of course, is a small number compared to the millions of victims of the North Korean regime.

H/T: QandO

U.S. Senators To Parents: We Know Better Than You

Two United States Senators are advocating universal Internet filtering on the ground that parents aren’t capable of protecting their children:

US senators today made a bipartisan call for the universal implementation of filtering and monitoring technologies on the Internet in order to protect children at the end of a Senate hearing for which civil liberties groups were not invited.

Commerce Committee Chairman Daniel K. Inouye (D-Hawaii) and Senate Commerce, Science, and Transportation Committee Vice Chairman Ted Stevens (R-Alaska) both argued that Internet was a dangerous place where parents alone will not be able to protect their children.

“While filtering and monitoring technologies help parents to screen out offensive content and to monitor their child’s online activities, the use of these technologies is far from universal and may not be fool-proof in keeping kids away from adult material,” Sen. Inouye said. “In that context, we must evaluate our current efforts to combat child pornography and consider what further measures may be needed to stop the spread of such illegal material over high-speed broadband connections.”

“Given the increasingly important role of the Internet in education and commerce, it differs from other media like TV and cable because parents cannot prevent their children from using the Internet altogether,” Sen. Stevens said. “The headlines continue to tell us of children who are victimized online. While the issues are difficult, I believe Congress has an important role to play to ensure that the protections available in other parts of our society find their way to the Internet.”

First, a question for Senator Ted “the Internet is a series of tubes” Stevens and Senator Inouye, what part of this little part of the Constitution of the United States don’t you understand ?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

More importantly, where in this part of the Constitution do you find Congressional authority to regulate the content of the Internet or force ISP’s to filter content to “protect the children” ?

Yea, I didn’t think so.

And, finally, I’m not a parent myself, yet, but I think I speak for parents and adults everywhere when I say, Senators, we can decide for ourselves what is appropriate for our children. Leave us alone.

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