Professor David Cole on Judge Posner & Civil Liberties
THE POVERTY OF POSNER’S PRAGMATISM: Balancing Away Liberty After 9/11 by David Cole
59 Stan. L. Rev. 1735 (2007)
This review of Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency argues that Posner’s particular brand of pragmatic utilitarianism is particularly ill-suited to constitutional interpretation, as it seems to negate the very idea of precommitment that is so essential to constitutionalism. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find constitutionally unobjectionable most of what the Bush Administration has done thus far in the “war on terror,” including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. Indeed, Posner’s Constitution would permit the Administration to go much further than it has—among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information. All of this is permissible, Posner argues, because unless the Constitution “bend[s]” in the face of threats to our national security, it “will break.”
Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on “judicial activism,” Posner argues that given the open-ended character of many of the Constitution’s most important terms, it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards. But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document’s open-ended and evolving character. In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others.
The review first discusses Posner’s analysis of several specific security-liberty issues, in order to illustrate how his method works in concrete scenarios. I then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous.
Written By:Tantallon On June 8, 2007 10:35 PM Written By:Tantallon On June 8, 2007 10:39 PM
THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. Not Suicide-- A Pact!
Through the Fall of 2006 and into the summer of this year on-lookers of the American Constitutional debate have gnawed away at Not a Suicide Pact, in an act of faith, searching for some sign of a sense of coherence and intellectual integrity that had to, just had to, be burning somewhere under its surface -- surely, somewhere, somewhere in Suicide, the rash, rude, clever, prolific, privileged, jurisprude Posner, had set to burning some flicker of twinkling insight.
Through the months, Suicide at hand, we whipped back to Holmes and then forward through the pragmatists and then sought some kind of refuge even farther back in the words of the Framers, trying to dissect out some tiny sense of theme or consistency. We knew that Posner, the profiled American federal appellate Court judge and academic could never, on principle, risk to disappoint in a matter of integrity.
Those months of Fall and Winter and Spring have been a lonely time.
Trade reviews and publishers' blurbs alone, even with the witty depredations of this non-suicidal work on one thinking persons' blog site or another were nothing at all blank out that silence.
Fortunately, albeit later rather than sooner, signs of scholarly enterprise have now appeared.
Professor Cole's substantial contribution to analysis of Posner's assertedly non-suicidal work is to demonstrate that the judge's words are entirely devoid of cognition that -- whatever pragmatism might say of how legal decisions are made -- the constitution that he wants to bend into pretzels is not just an instrument of his convenience. It is founded on consensus, not as to outcome, but as to how outcomes should be reached.
Cole's review says, "In Posner's approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others"
Setting aside the fact that I have tried to read between and around the lines of this learned judge's approach for months and have found no sense of understanding of any kind of consensus or any sense of a spirit of the constitution at all, I am grateful that Professor Cole's intellect and skills have allowed him to tease out and highlight the Constitution's essentiality as one of pre-commitment. (I am grateful too to Professor Cole for the idea of "pre-commitment," itself as a noun, in the context of this debate.)
Cole amply although courteously sees what is happening in this suicidal work and for this I am and no doubt other labourers in this unfertile garden for so many months are grateful.
"Posner, Cole says, " prefers to resolve the question by the ad hoc weighing of imponderables," and Posner "ignores this line of cases" and Posner " simply announces constitutional conclusions without any attempt to defend them through cost-benefit (or indeed any other) analysis." And yet in another place he cites : "[Posner's] open-ended balancing approach that [Posner] admits ultimately involves weighing imponderables."
Cole's ability to isolate and rationalize the component of pre-commitment, as the central organizing principle of the constitutional enterprise itself, not to mention his identification of the existential absence of the idea in any way, in Suicide, is the key to his identification of the bankruptcy of this suicidal work.
Cole's review, and perhaps Cole himself, suffers from this one fundamental flaw itself. He is - apparently - too much of a gentleman or an academic -- to allow himself to make the one final basic observation which the Suicidal work deserves: with respect, this book is a crock.
The remaining complaint respecting Professor Cole's work aside from his gentlemanliness to a fault, is his sense of timing. The next time, please, perhaps he could be a little quicker off the mark.
THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. Not Suicide-A Pact
Through the Fall of 2006 and into the summer of this year on-lookers of the American Constitutional debate have gnawed away at Not a Suicide Pact, in an act of faith, searching for some sign of a sense of coherence and intellectual integrity that had to, just had to, be burning somewhere under its surface -- surely, somewhere, somewhere in Suicide, the rash, rude, clever, prolific, privileged, jurisprude, Posner, had set to burning some flicker of twinkling insight.
Through the months, Suicide at hand, we whipped back to Holmes and then forward through the pragmatists and then sought some kind of refuge even farther back in the words of the Framers, trying to dissect out some tiny sense of theme or consistency. We knew that Posner, the profiled American federal appellate Court judge and academic could never, on principle, risk to disappoint in a matter of integrity.
Those months of Fall and Winter and Spring have been a lonely time.
Trade reviews and publishers’ blurbs alone, even with the witty depredations of this non-suicidal work on one thinking persons’ blog site or another were nothing at all blank out that silence.
Fortunately, albeit later rather than sooner, signs of scholarly enterprise have now appeared.
Professor Cole’s substantial contribution to analysis of Posner’s assertedly non-suicidal work is to demonstrate that the judge’s words are entirely devoid of cognition that -- whatever pragmatism might say of how legal decisions are made -- the constitution that he wants to bend into pretzels is not just an instrument of his convenience. It is founded on consensus, not as to outcome, but as to how outcomes should be reached.
Cole’s review says, “In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on othersâ€Â
Setting aside the fact that I have tried to read between and around the lines of this learned judge’s approach for months and have found no sense of understanding of any kind of consensus or any sense of a spirit of the constitution at all, I am grateful that Professor Cole’s intellect and skills have allowed him to tease out and highlight the Constitution’s essentiality as one of pre-commitment. (I am grateful too to Professor Cole for the idea of “pre-commitment,†itself as a noun, in the context of this debate.)
Cole amply although courteously sees what is happening in this suicidal work and for this I am and no doubt other labourers in this unfertile garden for so many months are grateful.
“Posner, Cole says, “… prefers to resolve the question by the ad hoc weighing of imponderables,†and Posner “…ignores this line of cases…†and Posner “… simply announces constitutional conclusions without any attempt to defend them through cost-benefit (or indeed any other) analysis.†And yet in another place he cites : “…[Posner’s] open-ended balancing approach that [Posner] admits ultimately involves weighing imponderables.â€Â
Cole’s ability to isolate and rationalize the component of pre-commitment, as the central organizing principle of the constitutional enterprise itself, not to mention his identification of the existential absence of the idea in any way, in Suicide, is the key to his identification of the bankruptcy of this suicidal work.
Cole’s review, and perhaps Cole himself, suffers from this one fundamental flaw. He is â€â€" apparently â€â€" too much of a gentleman or an academic -- to allow himself to make the one final basic observation which the Suicidal work deserves: with respect, this book is a crock.
The remaining complaint respecting Professor Cole’s work aside from his gentlemanliness to a fault, is his sense of timing. The next time, please, perhaps he cold be a little quicker off the mark