Glenn Greenwald has a good post about Richard Posner’s interview with fellow lapsed libertarian Glenn Reynolds and Helen Smith. I find Posner’s arguments troubling in many respects, although I would focus on slightly different aspects than Greenwald does. In fairness to Posner, he cannot be accused of a contradiction in advancing a flexible method of constitutional interpretation; he’s always been (or, at least, is when he’s not engaging in intemperate, tendentious attacks on justices who use his pragmatism to achieve different ideological ends–his attack on Douglas is pretty embarrassing given what he’s now arguing) an explicit advocate of pragmatic interpretation and has always disowned “originalism” and “judicial restraint.” Indeed, his essay “What Am I? A Potted Plant?” remains one of the better critiques of originalism, and while his defense of Bush v. Gore fails it’s the best of an admittedly awful field because he at least makes no pretense that the decision was compelled by text or precedent or consistent with the previous jurisprudence of the justices who authored or joined the opinion of the court. Greenwald is, of course, correct that Posner’s arguments are inconsistent with what Republican elites claim is their constitutional philosophy, but after Bush v. Gore I’m not willing to pretend that these claims are serious even for the purpose of knocking them down.
Even on its own terms, however, I think that his argument is problematic in numerous respects. The first problem, as Marty Lederman argues in detail, is that Posner’s defense of the President’s breaking of the FISA statute both stretches his flexible interpretation past the breaking point and completely contradicts the institutional arguments he’s making. A pragmatic legal approach is consistent with reading the Fourth Amendment very narrowly when construing FISA, but surely it cannot accommodate the ongoing violation of the laws of a coequal branch if pragmatism is to be a legal approach at all. And Posner cannot claim that Congress can act as a constraint on Presidential powers rather than the courts if he believes that the President can simply ignore Congressional constraints.
This leads us to the second problem, which is the amount of circularity that underlies his argument. Posner has a persistent problem with changing the premises of his cost-benefit analyses to reach politically conservative results, and this is no different. Reynolds says, correctly, that “what’s interesting is that Posner’s advocating a “more European” approach to national security powers.” But the problem, as Greenwald and Lederman say, is that for better or worse the United States Constitution establishes very different constitutional standards than France. Surely, this at a minimum this puts on the burden of proof on Posner to demonstrate that such a radical change in the constitutional order is necessary–but based on what we’ve seen of his arguments so far, all we have is multiple layers of question-begging. His argument is premised on a number of extremely questionable assumptions–that terrorism represents a threat of an order sufficiently different in kind from other threats of avoidable death that would surely not justify a substantial de facto revision of the Constitution, that it justifies emergency executive powers although it does not have the time boundaries of a typical military conflict, that these threats cannot be dealt with under the current system, that nearly arbitrary executive power is a more effective means of thwarting terrorism than a system of supervision and robust checks and balances, that expanded executive police powers can be easily cabined by invoking the vague term “national security”–that he makes little effort to defend. Perhaps he will in his book, but so far he hasn’t come close to meeting the high burden that would be necessary to justify his arguments. The skepticism that he applies to state power in other contexts simply vanishes here, despite the considerable scope of the expanded authority he’s arguing for.
Like Posner, I am a pragmatist. I happen to agree with Posner that Lincoln’s famous “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” argument is “unanswerable.” The problem–even leaving aside that while Lincoln asserted the right to initiate extraconstitutional powers during periods of genuine emergency, unlike Bush he never claimed these powers were unreguable–is that the situation that Bush faces is simply nothing like what Lincoln faced. There’s no existential threat, there’s no ongoing insurrection, and to strain the concept of “emergency powers” to apply five years after 9/11 with no subsequent attacks on American soil would be to render the qualification to executive power meaningless. It’s possible, I suppose, that the current conflict may justify an informal amendment to the Constitution, such as happened with respect to the powers of the federal government during the New Deal. But Posner has–pending his book–not made a remotely convincing argument that such changes are necessary. And I can’t imagine any argument that could justify the President violating acts of Congress five years after 9/11.