an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[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.]
* * * * * * *
Judge Posner sees the question of civil liberties as a simple balancing of a "public-safety interest" and a "liberty interest" ["The Truth about Our Liberties," Summer 2002]. He insists that it is "common sense" that we should surrender rights given the situation we now face. But he 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.
The issue before us today is not simply whether civil liberties should be curtailed, but whether executive officials should be given increased power without increased accountability. Institutions, and in particular government institutions, have inherent incentives to try to increase their authority while decreasing their accountability. It is no accident that the present administration has simultaneously sought greater enforcement powers, promoted secrecy vigorously even in areas unrelated to national defense, and attempted to make as much law as possible without congressional consultation. And it is no accident that the same administration has attempted to justify its secrecy, its consolidation of power, and its unilateralism by manipulating a climate of free-floating fear.
Power without accountability leads to arrogance and corruption, and these lead to errors of judgment. Government officials are agents of the people, and like all those who wield power on behalf of others, they have natural incentives to abuse their authority if there are not sufficient checks and monitoring devices. We have seen this in the recent corporate scandals, where lack of managerial accountability led inevitably to fraud, self-dealing, and mismanagement. An administration composed largely of businessmen is unlikely to be any more impervious to the law of bad incentives.
When government officials act in secret, when they arrest individuals without disclosing their identities or hold them indefinitely and deny their right to an attorney or to judicial review, they make it easier to cover up their mistakes. And when government officials are utterly convinced of their rectitude and view others as mere hindrances to the pursuit of the nation's interests, they are more likely to succumb to the perils of groupthink, self-delusion, and hubris. This administration has been particularly emphatic about its sense of moral certainty and about the dubious patriotism of those who dare criticize it. That should be a warning sign to anyone.
Moreover, the notion that "we" must surrender our civil liberties to preserve our safety glosses over the fact that the burden of deprivation is not evenly distributed. Judge Posner will not be rounded up secretly and held without access to counsel. The brunt of the nation's fears will be borne by others. Governments tend to overreach against those who have least power to object–hence the blanket closing of immigration hearings, the secret roundup of aliens, and the indefinite detention of Muslims. Institutional incentives lead governments to hassle not the most dangerous but those most accessible to hassling and those the public cares least about.
Civil liberties and democratic accountability might seem rather inefficient means of governance, but they have considerable advantages. Forcing government officials to explain and justify their actions to Congress and to an impartial judiciary keeps them grounded and honest. To be sure, civil liberties do not exist merely to secure democratic accountability; that is why increased accountability does not always justify increased power. The government should not be allowed to round up Muslim citizens for indefinite detention even if Congress and the voters approved it. But weakening individual rights eliminates a crucial source of restraint on executive power, and unrestrained power usually leads to arrogance and bad judgment. Thus we shouldn't assume that maintaining civil rights and democratic accountability necessarily decreases our safety. To the contrary, it may secure better decision making and greater security in the long run. Suppression leads to fear, fear leads to hatred, and hatred leads to violence and instability. Unwise attacks on other countries may provoke countermeasures that harm our own citizenry. A government untethered from the checks and balances that individual rights and democracy provide may make serious errors of judgment that lead to more deaths and more human suffering, both for our own people and for people in other lands.
Emergencies create dangers, but they also create possibilities for amassing power. When the perils we face are, in Judge Posner's words, "diffuse" and "shadowy," those in power will ask for as much as they can get, including prerogatives they sought long before the emergency appeared. Yet it is precisely when the threat is most uncertain and diffuse that the balance between liberty and security that Judge Posner celebrates becomes hardest to fathom and the problems of overreaction and opportunism become greatest. For pragmatic reasons, then, it is best to require the strongest showing before the mechanisms of accountability are dismantled and the executive is given free rein to arrest, incarcerate, and spy upon the people at will.
It might be objected that the balance should be struck differently in times of emergency, as we face now. But we have no idea when this state of danger will end, or when the war on terrorism will be concluded. The Cold War spanned nearly half a century; what we do now under the name of temporary necessity is very likely to become business as usual. Other nations have not had much success with the declaration of emergency powers. By removing the safeguards of accountability they have often spiraled into greater and greater acts of arbitrariness and tyranny.
Judge Posner insists that we should not be concerned that officials will "exaggerate dangers to the nation's security," because "the lesson of history" points in the opposite direction. "It is because officials have repeatedly and disastrously underestimated these dangers," Posner asserts, "that our history is as violent as it is." He offers as examples Southern secession, Pearl Harbor, Soviet espionage during the Cold War, urban rioting in the 1960s, the Tet Offensive, and the Iranian revolution, as well as September 11. But Judge Posner does not seriously contend that these episodes arose because of too much protection for civil liberties. There is no evidence that Southern secession was caused by an excess of civil liberties–Southern states held human beings in slavery, ruthlessly enforced the rights of slaveowners, and regularly censored the speech of those who disagreed with their policies. The urban riots of the 1960s were not caused by ten years of civil rights progress, but by three hundred years of racial oppression. Our lack of preparedness for Pearl Harbor resulted from failures of diplomatic and military intelligence overseas, not too many writs of habeas corpus or an overindulgent constabulary. No one thinks that Miranda v. Arizona caused the Tet Offensive or the Iranian revolution. The problem of domestic espionage during the Cold War began well before the great civil liberties innovations of the Warren Court, so it can hardly be blamed on civil libertarians.
Posner's argument overlooks the fact that government officials might systematically overestimate the dangers that come from accountability and civil liberties–because accountability and civil liberties interfere with their power–while systematically underestimating dangers to the nation that arise from other sources and causes. Indeed, this seems to be the real lesson of our history. We should not blame civil liberties for our lack of preparedness, but we can blame officials for routinely using threats of emergency as an excuse to curtail domestic civil liberties. Because of the fear of blacks, Southern states wreaked havoc on the rights of Americans, black and white. Because of a racist suspicion of a Japanese fifth column, our country created its own set of concentration camps. Because of the fear of Communism, the lives and fortunes of many good people were destroyed in an orgy of hysteria. And all of this was done in the name of emergency, in the name of America, in the name of protecting our way of life.
Like Judge Posner, I consider myself a pragmatist, one who, in his words, regards law as "a human creation rather than a divine gift." I think his views insufficiently pragmatic, for he fails to recognize that our institutions will rot and decay without the checks and balances that keep us a free society. He worries about the mysticism of civil liberties. I worry about the mysticism of authority. Posted
by JB [link]
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.