Published in Law and Politics Book Review 17(3):205-207, March 2007.
Cite as: Deflem, Mathieu. 2007. Review of Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard Posner.Law and Politics Book Review 17(3):205-207.
According to (liberal) economists, the world is very simple. Everything is about weighing costs and benefits. Applied to the field of law, Richard Posner writes about a variety of legal and related social issues from this particular lens. Before we join the chorus of those who embrace him for this feat alone, we would be wise to read some of his work and analyze it for what it intends to do and what it accomplishes in the process.
In this short book, Richard Posner outlines the results of one of his weighing exercises, more specifically the construction of a balance that he thinks ought to exist between the protection of civil liberties, on the one hand, and the need for safety and security, on the other. Posner argues that this balancing act is particularly difficult, yet all the more necessary, in these days and years since the events of September 11, 2001. Developing his argument, Posner is especially critical of those who seek to protect civil liberties at all costs and who have no apparent concern for the objectives of government conduct aimed at providing public safety and no knowledge of the best ways in which the ideals of the US Constitution can be protected.
Posner begins by arguing that the center of gravity of constitutional law in the United States is not the US Constitution, but the decision-making process of the US Supreme Court. The justices of the Court, Posner maintains, are driven by considerations about the practical consequences of their actions rather than legal logic. Arguing against a radical civil libertarian viewpoint, Posner formulates an approach that recognizes the relative rights of citizens and powers of all branches of government. His main focus is on constitutional rights that relate intimately to recently instituted counter-terrorist measures that involve the denial of the right to habeas corpus, the implementation of special investigative methods (interception of communications, monitoring of free speech, use of torture), and the establishment of military tribunals to try suspected terrorists. Posner suggests that such special measures can be required because terrorism should be conceived a sui generis reality that is neither crime nor war. Therefore, Posner contends, terrorist suspects cannot lay claim to the same constitutional protections that are granted to criminal suspects.
Posner ends this book with some speculations about privacy rights. He argues, not surprisingly, that mining activities organized by government agencies may be a critical weapon in the fight against terrorism. In fact, under exceptional circumstances, Posner maintains, it would even be permissible to recognize government conduct as being at once illegal yet also morally necessary.
It is impossible to review this book outside the context of its foundations in the law and economics approach and the merits and limitations that are associated with that perspective. In my mind, it is a mere consequence of the law and economics approach and, more specifically, Posner’s blind obedience to the perspective that this book is high on speculation and low on analysis. From the very beginning, Posner resorts to unasserted statements, such as when he claims that justices (and judges) are in their decisions driven by practical concerns rather than logic. If only it were so! Rather, justices are driven by legal logic as it exists, that is, by their varied and particularistic versions of multiple legal logics. All legal logic is ideologically colored, but no justice (or judge) is a social scientist, and it would be quite foolish and ultimately dangerous to think otherwise.
A judge of the US Seventh Circuit Court of Appeals, Posner employs a legalistic understanding of the law that is largely devoid of social science insights. In Posner’s mind, it appears, the law exists beside society, not squarely in it. Thus, he misses the point that the Supreme Court does not make constitutional law by interpretation of the Constitution as such, but by an interpretation that is always bound to legislation and policy. As such alone, judge-made law is always and necessarily embedded in a political context, where the legislative and executive branches are at work. Therefore, also, it can be argued that it is not the Constitution that changes during periods of intense societal disturbance or emergency situations, but the political and legislative manner in which such conditions are responded to and given meaning within a constitutional frame. The important changes in constitutional law do not take place at the level of judicial review but in matters of legislation initiated in the political world and the policies and practices that are planned and instituted by a variety of government and private agencies at the organizational level. Thus, we need analysis of the manifold aspects of these institutions and practices, not interpretation of the Constitution.
It can easily be agreed that civil libertarians have focused too exclusively on the negative side of the equation concerning citizen rights and societal needs, seeking to protect citizens and inhabitants from unwarranted government intrusion without, positively, contributing to setting the contours of what type of government action can be legitimate and necessary in view of ongoing issues related to public security. But that is also not their job. Defensive their actions may be, they are not meant to supplant policy, instead suggesting only which route policy cannot take and that another direction is called for when rights are violated.
Posner also argues against the most radically alternative interpretation, as it is defended by national security hawks, that terrorist suspects have virtually no rights, especially when they are not US citizens. Again Posner suggests, the right answer lies somewhere in between. Posner knows that his is not a book about how to respond to terrorism. But even as a book on the constitutional limits to government conduct against terrorism, it has very little to offer beyond the argument that there has to be some kind of a balance on the basis of stated considerations over individual rights and social necessities.
Posner’s work is oriented at contributing to build legal and public policy in US counter-terrorism efforts, not at an analysis of those efforts from a social science perspective. Posner’s work is that of a legal professional, written for the objectives of law itself. This book is not the product of social science scholarship —and perhaps it also does not need to be that, although the law and economics approach is at times mistakenly understood as such. But evidence we do not get from Posner. Instead there are platitudes (“a Constitution that will not bend will break” p.1). And in place of conceptually sound propositions or statements informed by a theoretical outlook, we get simple slogans couched in populist terms (“Our terrorist enemies. . . ; our vigorous campaign against al-Qaeda” p.2; “Privacy is the terrorist’s best friend” p.143). As a result, much of what Posner says is common sense, is rather bad common sense. What to say of such statements as “the external enemies whom Americans mainly fear are islamist terrorists. And with good reason” (p.5). Whose reason? Reification abound in this book. “They did us terrible harm on September 11, 2001” (p.5). They? Us? “We are officially at war with al-Qaeda” (p.102).
In the end, this book merely condones certain government activities against terrorism within unspecified limits. Besides not being tremendously original, Posner always assumes that we are dealing with terrorists or advocates of terrorist activities who pose a distinct threat to the safety and security of citizens. Yet, one of the key normative problems concerning contemporary security practices is precisely the fact that it is not always clear when and whether the net of counter-terrorism is cast too wide with a mesh too thin. Relatedly, it can be rightly argued, indeed, that terrorism is neither crime nor war but a unique reality. However, that need not imply that it is something in between crime and war. Should that be the case, any speculation on terrorism and counter-terrorism in terms of either military operations or criminal justice practices is misguided from the start.
There is, of course, no way to understate the tremendous stature of Richard Posner as a public intellectual whose prolific writings have contributed to the American discourse on important matters of public policy. But there is reason to be concerned that the law and economics approach can ultimately not do much more than provide some balanced attacks and moderate proposals. Yet, our times are radical and pose radical questions that are in need of radical answers.