Saturday, December 16, 2006
The Truth About Our Institutions
[This essay, written in response to Judge Richard Posner's defense of limiting civil liberies in wartime, originally appeared in The Responsive Community, October 2002.]
Professor Balkin: Judge Posner sees the question of civil liberties as a simple balancing of a "public-safety interest" and a "liberty interest".
The problem with "balancing tests" in general, from Terry v. Ohio forward, is they not only allow but induce illegitimately bi-valent thinking. This is no exception.
Judge Posner's "Not A Sucide Pact," came to my attention earlier this Fall through the fortuitous combination of the marketing chops of a major on-line bookseller and the title's pizzazz. The "me" and "my" in this post, by the way, are those of journeyman, East Coast Canadian lawyer bearing the scars of a few, but only a few, occasional brushes with issues of security and the legal process. North of the border most of us don't come in to contact on any rigourous or disciplined basis with American jurisprudence. My discovery of this work by the Judge, was a jolting experience that also touched off the start of a little personal excursis to try to understand both other works by the judge, the critiques of his many intellectual opponents and the ongoing operation of American legal pragmatism.
This, Mr. Balkin's 2002 article, is helpful in remembering the context in which the Judge's writing first began to take on American national urgency in its frightened and resolute days immediately after 9/11. It reminds us that, sloppily applied, the power of purported pragmatism can be readily and far too prone to abuse and it suggests to me also that, for pragmatists, the full content of the structure that is to define, if not also confine, its own application continues to need far, far more exploration.
But I suggest that "Suicide" presents an elaboration of the Judge's earlier thoughts that takes on a much more frightening cast and I hope that Mr. Balkin, and others, will take on the tougher, closer, tighter analysis of this work, turn its underlying theses over and tease out and expose both the leaps and the tiny breaks in logic and context on which it relies.
Under the guise of elaborating his "everyday pragmatism" in the context of American national security concerns, the judge seems to be cooking up a buffet of individual dishes, to be left out and available to be selected and applied at appropriate points, in appropriate future decisions, of like-minded colleagues of his. I very much fear that at some point, adopted uncritically, you will see them served up in some future judgement of one of your appeal courts – one yet hopes, not in the decision of the majority.
These ideas are made available to be like aspirin for the headaches of a future judge's trying to come to, finese out or tart up a pragmatic, (perhaps even an ideologically "pre-determined") result. So, for example, Mr. Justice Posner tells us, in some future violations of constititutional or other civil liberties, where state actors have single handedly and unlawfully arrogated the liberties of others into their own hands, they might well be treated as practicioners of civil disobedience in the same way as your Martin Luther King or India's Ghandi. More broadly, he wants to apply civil liberty, constitutional principles as "standards" to the judgement of civil liberties issues not rules under the guise that standards would allow the flexibility for pragmatism – and Mr. Balkin would point out for abuse and obfuscation – that rules do not
Then, taking what would seem to be the basic ideal of judicial deference and weaving them into high art, telling us that judges are not competent by training or experience to decide national security issues (whatever happened to the idea of evidence, even expert evidence?), Judge Posner produces a salve for the conscience of those future judges who would just as happily cop out of the touch decisions, and allow them to delegate out of the toughest of future calls and wash their individual hands of the risk of judging's collateral damage.
These are dangerous times. Times can give rise to dangerous ideas.
I hope that Professor Balkin and others, well equipped by education, intellect and experience will take on these ideas.
Good argument, but the real question in politics is "Who, whom?" Shouldn't the dispute between Profs. Balkin and Posner be decided by the people through the electoral process? Because I for one find the idea of being ruled by a bevy people chosen for their LSAT scores most irksome.
Sean: Shouldn't the dispute between Profs. Balkin and Posner be decided by the people through the electoral process?
Sure, Sean, right after we hold a vote on the value of Pi and the square root of two. See, you've made a classic, simple mistake, in suggesting that democracy is relevant to settling what is, rather than merely deciding what we shall do. You can vote on the nature of reality, but that won't change it one whit. Posner's focus on users and utiles is unarguably divorced from reality. Rational actor theory, like Euclidean geometry, has its uses, but in the end fails to properly address even the simplest of common sense questions. As Professor Balkin points out (uh, you did actually *read* the post before commenting, right?) Judge Posner ...neglects the crucial question of incentives, a strange omission for a scholar who has spent much of his distinguished career reminding us of their importance. Another way of putting is that Judge Posner, predictably, puts "provide for the common defense" forward as the primary criterion for decision making without factual reference to the opportunity costs of such a decision, much less taking into account that even if given first rank this criterion is inextricably linked to "form a more perfect union" and "secure the blessings of liberty."
Sean: I for one find the idea of being ruled by a bevy people chosen for their LSAT scores most irksome.
Thanks for reminding me why I had you killfiled. You are ruled, and always will be, by a bevy of people whose parents were infinitely wealthier than yours and mine. That being the case your best bet is to preach conscience to power, specifically the restricting, prohibitive conscience of Rabbi Hillel's "What is hateful to thee..." lest they deem you and your expendable.
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