Khawaja on Posner’s Not a Suicide Pact

In Democratiya, Irfan Khawaja reviews Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency.

According to Posner, rights are ‘created’ by engaging in a pragmatic cost-benefit analysis and tying this analysis in a very loose way to the generalities we find in the Constitution. In other words, when it comes to national emergencies like the current one, pragmatism requires us to ‘balance’ the interests of liberty against those of security, choose an arrangement that gets us the optimal amount of both, and find a (rough) textual rationale for doing so. ‘Ideally,’ he writes,

in the case of a right (for example the right to be free from unreasonable searches and seizures) that could be asserted against government measures for protecting national security, one would like to locate the point at which a slight expansion in the scope of the right would subtract more from public safety than it would add to personal liberty and a slight contraction would subtract more from personal liberty than it would add to public safety. That is the point of balance, and it determines the optimal scope of the right. (p. 31)

Unfortunately (Posner continues) American judges, with the connivance of civil libertarian ideologues, have pushed things away from the ‘point of balance,’ that is, too far in the direction of personal liberty and too far away from the requirements of national security. Though problematic enough in the case of ordinary crime, in the case of Islamist terrorism, this ‘rights fetish’ (p. 150) imperils our very existence. The time has therefore come to push things in the reverse direction (albeit only as regards Islamist terrorism). To this end, Posner argues, we should reinterpret the principle of habeas corpus to allow for the indefinite detention of suspected terrorists (p. 56); reinterpret the Fourth Amendment to the U.S. Constitution so as to deny its applicability to suspected terrorists (pp. 88-91); allow torture for purposes of intelligence-related information gathering (pp. 86-87); allow unlimited electronic surveillance (and perhaps physical searches) without warrants or probable cause (pp. 99-101); and reinterpret the First Amendment so as to allow for the censorship of ‘hate speech’ by and against Muslims (p. 124).

To some, Posner’s recommendations will sound like a sober resolution of the problem with which I opened this review. To others, the same recommendations will sound like an outright apology for dictatorship. I incline toward the latter interpretation. Despite the sobriety and sincerity of his prose, Posner’s book amounts in the end to a wild and incoherent defense of dictatorship. His arguments are premised on tacit claims he does not defend, and explicit claims he cannot defend. Once we consider and reject these claims, there turns out to be little left of the book.