Sadly, discussions of the pricklier issues of law, terrorism, and security rarely follow a cool, pragmatic approach. In Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard Posner, the polymath federal judge, professor of law, and eminent pragmatist public intellectual, provides just such a perspective on the relationship of the Constitution to the terrorist threat. Undaunted by controversy, Posner forthrightly addresses detention, harsh interrogation methods, limits of free speech, ethnic profiling, and the boundaries of privacy rights, among other hot-button topics.
Posner's book deserves to be commended for its policy recommendations, which are almost unfailingly sane, even if there are places to disagree, as they recognize the severity of the threat while looking to protect the liberties Americans have always enjoyed. He counsels, for instance, for an institutionalized domestic surveillance scheme on the one hand, while arguing against ethnic profiling on the other, tabulating the respective benefits and costs associated with each proposal.
But the book is not just a policy brief—it is also a legal argument, and it is here that the book is more troubling. Judge Posner is a thoroughgoing pragmatist, and he does not stray from that position here. Constitutional adjudication, he argues, is a product of the interplay of politics with the epistemological uncertainties of language. In his view, "Constitutional rights are created mainly by the Supreme Court of the United States by 'interpretation' of the constitutional text" (p. 17) because that text has no inherent quality that distinguishes it from the will of its interpreters. In other words, judges are policy-makers, and judicial decisions regarding constitutional protections are simply indirect policy decisions.
Instead of seeking to remedy or control this judicial willfulness, Judge Posner accepts and even endorses the idea of a judiciary that legislates, even when it comes to the Constitution. In this vein, much of his book is dedicated to arguing how—not whether—judges should determine what constitutional "rights" ought to be recognized at any given time by a consequentialist "balancing" of the security needs of the nation with society's sense of privacy and related rights.
As an account of constitutional development, Judge Posner’s bracingly realist commentary is largely correct in its analysis. The history of constitutional law in this country certainly suggests that our courts are by their very nature political and discretionary. But many will rightly find Judge Posner's skepticism nevertheless too thoroughgoing. While the skeptical argument is a powerful one, it is also true that there are very strong arguments that words, though at some level inherently indeterminate, can bear some inherent, directive meaning. The classification of animal species, for instance, is not an artificial activity, but reflects some underlying realities. Likewise, written law, especially to the extent that it is more specific and detailed in its mandate, can reduce the degree of ambiguity to which it is subject. Laws requiring that one's taxes be filed by April 15 may leave some question as to when precisely, but it is quite clear that May 1 is not an acceptable return date.
Perhaps a more appealing approach than Judge Posner's would be to seek to give a fair and, insofar as possible, objective "original" reading to the protections provided by the Constitution, especially those that are rather more clear and specific, while giving a more modest and narrow interpretation to the document's broader grants. Such an approach would concede the power of the skeptical critique by adopting a modest interpretation of the Constitution's sometimes ambiguous terms while simultaneously holding fast to its clearer core dictates.
What does this rather abstract debate have to do with the Constitution in a time of national emergency? Quite a lot, actually. For in the balance hangs our understanding of the role and integrity of our constitutional rights. To Judge Posner, the Constitution's privileges have become "shibboleths and taboos," best subjected to a consequentialist balancing test. But the very point of making these privileges "shibboleths and taboos" was to ring them with firm protection. We want our core rights as citizens to be almost religious rights, compromised only in the direst of emergencies. A good example of such logic is the dissent of Justices Scalia and Stevens, from opposite ends of the ideological spectrum, to the majority's weakening of American citizens' habeas corpus privilege in the Hamdi v. Rumsfeld decision.
Such an approach can appeal to both sides of the spectrum. Both should be concerned that the pragmatist interpretation effectively empties the Constitution of any meaning divorced from the decisions of judges, and especially the nine justices who sit on the Supreme Court. Such an interpretation defeats the very purpose of the civil liberties protections of the Constitution and Bill of Rights, which were precisely attempts to set at least somewhat objective and immovable limits on governmental power, even in times of national danger. Civil libertarians who traditionally advocate a flexible, living Constitution do so at their peril: in the hands of a policy-making judge less sensible than Judge Posner, such flexibility could easily become a license to contract the sphere of core constitutional liberty as perceived dangers increase.
Furthermore, Judge Posner's argument for policy-making judges runs into difficulties even from a governmental effectiveness perspective. While pragmatism should certainly be one of the great watchwords of those entrusted with the nation's security and its foreign interests, good sense and the Constitution have vested these responsibilities in the Executive and, to a lesser degree, the Legislative branches. From judges we expect different, perhaps even opposing, qualities—among them a purer, unpragmatic fidelity to the dictates of the law, and particularly the Constitution. We rightly expect the judiciary to be pulled more toward "Let justice be done though the heavens fall," not "the greatest good for the greatest number." The judiciary is therefore the least equipped branch, practically, to address threats to the nation. Slow, plodding, consumed with procedural detail, and inexperienced in foreign affairs, the judiciary is for this reason not just "the least dangerous branch," in Alexander Hamilton's phrase, but also the least competent in foreign policy matters, and so should not be relied upon for decisive, well-informed, sensible policy-making.
It would be comforting if we could draw lines and be done with it. The matter, however, does not end there. While it is important to hold tightly to our vested rights, we cannot but remember that today, in the shadow of the threat of terrorist use of nuclear or biological weapons, we are faced with the possibility of what Judge Posner terms in another book a real "catastrophe," a possibility that any responsible government must do everything in its power to prevent.
Perhaps no other matter crystallizes this point as well as the issue of the use of harsh interrogation methods, particularly in the case of a real threat of a catastrophic strike. For this eventuality Judge Posner advocates a variant of what might be termed the current Israeli position: torture should be illegal, but it will be expected that dutiful officials will, in dire straits, perform civil disobedience by using the practice to extract necessary information. The deepest problem with this argument is that it places an act of the highest moral and security consequence outside the bounds of the law, treating it as a pure tool, rather than also as an expression of the values of the community. Must the extraordinary measures demanded by extreme circumstances operate outside the law?
No conclusive answer can be provided here to this ancient and troubling question, except to note two points. First, in Judge Posner's favor and as Lincoln remembered, the bright lines of the law must always operate under the great rule salus populi suprema lex—the safety of the people is the highest law. This justly renowned judge and public intellectual is right to remind us that the Constitution is "not a suicide pact." Desperate circumstances justly call for desperate measures. Even so, we must also remember that extreme cases make bad law, and that we should not allow the pragmatism of necessity in the face of truly extreme circumstances to spread from being the exception to being the rule.
- Richard A. Posner (People)