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Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard A. Posner (New York: Oxford University Press, 2006), 208 pp., $18.95 cloth.
Sadly, discussions of the pricklier issues of law, terrorism, and security rarely follow a cool, pragmatic approach. In Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard Posner, the polymath federal judge, professor of law, and eminent pragmatist public intellectual, provides just such a perspective on the relationship of the Constitution to the terrorist threat. Undaunted by controversy, Posner forthrightly addresses detention, harsh interrogation methods, limits of free speech, ethnic profiling, and the boundaries of privacy rights, among other hot-button topics.
Posner's book deserves to be commended for its policy recommendations, which are almost unfailingly sane, even if there are places to disagree, as they recognize the severity of the threat while looking to protect the liberties Americans have always enjoyed. He counsels, for instance, for an institutionalized domestic surveillance scheme on the one hand, while arguing against ethnic profiling on the other, tabulating the respective benefits and costs associated with each proposal.
But the book is not just a policy brief-it is also a legal argument, and it is here that the book is more troubling. Judge Posner is a thoroughgoing pragmatist, and he does not stray from that position here. Constitutional adjudication, he argues, is a product of the interplay of politics with the epistemological uncertainties of language. In his view, "Constitutional rights are created mainly by the Supreme Court of the United States by 'interpretation' of the constitutional text" (p. 17) because that text has no inherent quality that distinguishes it from the will of its interpreters. In other words, judges are policy-makers, and judicial decisions regarding constitutional protections are simply indirect policy decisions.
Instead of seeking to remedy or control this judicial willfulness, Judge Posner accepts and even endorses the idea of a judiciary that legislates, even when it comes to the Constitution. In this vein, much of his book is dedicated to arguing how-not-whether-judges should determine what constitutional "rights"...