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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, August 29, 2006

"Conservatives" cheer on Judge Posner's highly un-conservative defense of federal police powers

Court of Appeals Judge Richard Posner has become one of the leading advocates of drastically expanded federal police powers as a response to the terrorist threat. He advocates the creation of a domestic spy agency (an internal CIA/KGB/Stassi-type agency to monitor domestic activities); expanding the group of citizens subjected to warrantless eavesdropping to include even include "[i]nnocent people, such as unwitting neighbors of terrorists"; allowing warrantless eavesdropping even if it violates the law; and stripping federal courts of their ability to enforce legal limits on the President's national security powers.

Posner was interviewed yesterday by Glenn Reynolds and Reynolds' wife, Helen, concerning the topics covered in Posner's new book, Not a Suicide Pact: The Constitution in a Time of National Emergency. The podcast interview is here. The two Reynolds -- credit where it's due -- actually do a decent job of asking Posner the right questions, which allow Posner to expound what are his truly radical theories of constitutional interpretation. What is amazing is that self-proclaimed "conservatives" are celebrating Posners' views even though those views are exactly those which conservatives have always claimed to be against.

Posner's core argument is that the threat of terrorism is so "very great" and "very novel" -- "sui generis" -- that the Constitution must be intepreted differently than it ever was before in order to deal with the threat (there is no transcript available -- all quotes are from my listening to the podcast). Posner repeatedly claims in the interview that "the Constitution is flexible" and he even says that it is a "loose garment, not shrink wrap." Thus, we "have to interpret the Constitution in a way to enable us to cope with unanticipated dangers."

Posner's relentless characterization of the Constitution as this amorphous, evolving document which must be shaped and molded by political events led Reynolds to ask the right if not obvious question -- isn't Posner advocating the very theory of a "living, breathing Constitution" which conservatives have long claimed to despise, even consider tyrannical?

Posner paused and stuttered quite a bit after being asked that question, and then admitted, quite astonishingly, that he "hadn't thought about that" painfully obvious point before. But he then told Reynolds that he's "right" about the fact that he, Posner, has an elastic view of the Constitution -- that it is a "flexible" document. Posner then justified that view by essentially denegrating the Constitution as obsolete and useless in light of this grave new threat. The Constitution is nothing but "an 18th Century document," Posner complained, and "the notion that [the Founders] had the answers to 20th Cenutry problems . . . is, I think, wrong and dangerous."

Posner may or may not be right about the claim that terrorism requires changes to the system of constitutional protections guaranteed to Americans by that document. But he is self-evidently and dangerously wrong to suggest that we can just get rid of constitutional structures by whimsically interpreting them away at will as obsolete in light of new political developments. The Founders obviously recognized that subsequent events or re-assessments may require changes to the Constitution -- and they therefore provided within the document several procedures for amending it. If Posner is right that the U.S. Constitution should be radically changed because of some Islamic extremists, then those changes can be effectuated only through the amendment process, not by judges deciding on their own that the terrorism threat necessitates an abridgement of liberties.

Posner is expressly advocating that the Constitution be changed without complying with any of those procedures -- simply by having judges "interpret" the Constitution differently in light of their view of political events and the terrorist threat. George Bush advanced the same view of the living, breathing Constitution (albeit in a much more muddled way) when he criticized Judge Taylor's ruling by claiming that supporters of her decision "do not understand the nature of the world in which we live" -- as though Constitutional protections guaranteed to American citizens by the Bill of Rights are not to be discerned from that document, but instead, by one's abstract understanding "of the world in which we live."

In one sense, this is nothing new. In order to defend the Bush administration's lawlessness, self-proclaimed conservatives have been advocating legal theories which are the very antithesis of the strict constructionism and originalism they claim to espouse. They insist, for instance, that the President has the power to engage in warrantless eavesdropping on Americans under Article II, even though Article II mentions not a word about surveillance or eavesdropping (such powers instead presumably "emanate" from the "penumbra" of the Executive's generalized Commander-in-Chief powers). Similarly, they contend that the 2001 AUMF "implicitly" repealed eavesdropping limitations imposed by FISA even though that statute also failed to say a word about eavesdropping, surveillance or FISA.

But Posner is nothing if not candid, and so he much more explicitly argues that the Constitution should be a clay-like instrument that can be shaped and changed by judges based on the whimsical political events of the day. Posner is a consistent theorist -- he requires a thorough intellectual justification for his conclusions -- and he knows that the Constitution as it has been understood and interpreted simply bars the extremist policies he wants, such as prolonged periods of lawless detention of U.S. citizens and his the massively expanded warrantless domestic surveillance which he advocates.

So Posner does what he is intellectually forced to do -- he argues that all of those Constitutional limitations can simply be done away with, banished with a magic wand, due to the terrorist threat, and he claims that this would happen if only judges had a better understanding (like he does) of just how grave this threat is. But arguing that the Constitution should be understood differently in light of contemporary political developments supposedly "unanticipated" by the Founders is precisely the legal theory which conservatives claim to despise.

Yet they nonetheless cheer on Posner, because Posner is advocating drastically expanded domestic police powers, and that -- rather than any limitations on judicial power or abstract theories of judicial restraint -- is what the new "conservatives" want most. And as their otherwise inexplicable support for Posner demonstrates, they don't really care how that's accomplished.

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