Fall 2008 - #4. The Constitution as a Pragmatic Document.

Author:Reviewed by Kevin J. Doyle, Esq.

Vermont Bar Journal


Fall 2008 - #4.

The Constitution as a Pragmatic Document

The Vermont Bar Journal #175, Volume 34, No. 3 FALL 2008


The Constitution as a Pragmatic Document

Judge Posner on Terrorism and Liberty Reviewed by Kevin J. Doyle, Esq.Few are as prolific as Richard A. Posner, Judge of the United States Court of Appeals for the Seventh Circuit, lecturer at the University of Chicago Law School, and well-known commentator. In addition to publishing what seems to be a book a year, Judge Posner contributes regularly to leading intellectual journals, maintains a daily blog with fellow Chicago business professor Gary Becker, and manages an active caseload on one of the busiest federal appellate courts in the nation. His range is impressive-among others, a casebook on the economic analysis of the law,(fn1) a book on the legal issues culminating in the Bush v. Gore decision in 2000,(fn2) several magisterial studies on legal theory,(fn3) and an extended reflection on the "law and literature" movement in legal education.(fn4)

Although much of Judge Posner's work falls on the scholarly side, he is engaged by the social and political dimension of the law-the intersection of theory and practice-as well as the real-world implications of the often-heady world of constitutional theory. In the consistent application of scholarly rigor to the most pressing social and political issues of the day, Judge Posner is one of the few genuine public intellectuals of our time.(fn5) Therefore, it should come as no surprise that Posner has some thoughts to offer on the post-September 11 constitutional landscape.

As the title suggests, Not A Suicide Pact: The Constitution in a Time of National Emergency advances a flexible theory of constitutionalism in which "we must find a pragmatic balance between personal liberty and community safety."(fn6) Judge Posner is concerned with "how far civil liberties based on the Constitution should be permitted to vary with the threat level."(fn7) And he is forthright in concluding that "[i]n times of danger, the weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are narrowed."(fn8) Posner proceeds from the premise that the post-9/11 threat of terrorism is sui generis, requiring a "tailored regime . . . that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes."(fn9)

In articulating his vision of the appropriate constitutional balance to be struck in the face of terrorist threat, Posner takes on all the controversial issues: the effect of national security concerns on shaping notions of individual rights; rights of detainees to challenge their detention through habeas corpus; rights against interrogation and search and seizure; free speech and privacy rights. On each of...

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