May 16, 2007

Stone v. Posner on constitutional rights and the War on Terror.

Simon has the detailed play-by-play of the debate between Professor Geoff Stone and Judge Richard Posner that took place at the 7th Circuit conference last week. You know, the one I depicted in scribbled words and pictures. I saw his sheaf of notes and thought it rather strange at the time, but with a plan -- achieved! -- to produce the definitive description of the event, it made perfect sense. Little did Stone and Posner know that Simon was claiming dominion over things. If there are distortions in there, who will know?
Stone “consider[s] himself a ‘civil libertarian,’” and “usually argue[s] that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government that the government has taken all other reasonable steps to keep us safe.” Posner, on the other hand, “do[es] not think that ‘restrictions of liberties should be a ‘last resort.’ [He] prefer[s] to see all proposed counterterrorist measures arrayed[] and compared one with the other without a thumb on the scale”; he “describes [him]self as a ‘pragmatist’ … [and] usually argues that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security ‘outweigh’ the cost to society of limiting the rights.”

(Footnotes omitted.)

11 comments:

Simon said...

"If there are distortions in there, who will know?"

You, Howard, the Chief Judge of the Seventh Circuit, and about a few hundred lawyers, magistrates and judges, by my recollection. ;)

"(Footnotes omitted.)"

LOL!

Freder Frederson said...

Posner is a dangerous Randian and libertarian of the worst kind. I would call him a fascist, but that would be an insult to fascists. How he got on the bench, or why so many 2Ls love him so much, is beyond me.

Simon said...

"[W]hy so many 2Ls love him so much[] is beyond me."

Well, I would guess because he's very glib, very smart, afflicted with Reynolds-Bashman Syndrome (symptoms: inhuman productivity), and he very effectively articulates an exceedingly seductive view of what law is and what courts should do without all the obfuscatory bluster that most legal liberals throw up to disguise essentially the same basic premise. He's much like Justice Brennan in many ways: even if you disagree with him (and as should be clear from my post, I disagree with Posner at the most basic level: for all the stage dressing, he's essentially no less the living constitutionalist than Brennan) you've got to give him due respect. I follow what the 7th Circuit's up to, to the extent time allows, and I always look forward to reading opinions by him.

Too many jims said...

Freder,

Posner may well be "dangerous" but saying that he is "Randian" and "libertarian" seems to me to missing the point of Posner's comments in this instance. By suggesting that "restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security ‘outweigh’ the cost to society of limiting the rights” Posner is sounding very utilitarian (unless I am reading this wrong). If I am right (and I realize I could be reading it wrong), it seems to me that what Posner is saying is anti-thetical to "Randian" (and probably to a lesser degree -- libertarian) thought.

Freder Frederson said...

If I am right (and I realize I could be reading it wrong), it seems to me that what Posner is saying is anti-thetical to "Randian" (and probably to a lesser degree -- libertarian) thought.

Well not really. He is just applying his typical cost-benefit analysis to the situation, which is what everything in his world reduces to.

And Simon shows his usual shallow understanding of practically everything. Posner is not smart. He is some kind of idiot savant. He can't get past reducing everything to a cost-benefit analysis. He once even tried to explain homosexuality using economic analysis. It would have made for great satire if not for the fact that he was dead serious.

I'm sure if he was ever asked to decide if it was crueler to execute someone with lethal injection or the electric chair, he would want to know how much the chemicals and the electricity cost before he rendered his judgment.

SMGalbraith said...

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Threat to liberty doesn't solely or exclusively come from the state. As Madison recognized.

The civil libertarians on the left certainly accept regulations and limits on the market to prevent predatory capitalists from abusing their liberties.

After all, the fundamental purpose of the state is, it seems to me, to prevent the war of all against all where the strong preyed on the weak.

So we draw lines, make distinctions over what can be done and what not. What is acceptable and what not.

Civilization they call it.

SMG

Ann Althouse said...

Well put, Simon, but I'm sure you agree that if there are going to be some living constitutionalists, there should be some on the right as well as the left. You need the "living" argument articulated for both sides.

Too many jims said...

Well not really. He is just applying his typical cost-benefit analysis to the situation, which is what everything in his world reduces to.

Are you saying that all Randians and libertarians reduce everything to a broader societal cost-benefit analysis? If so, you really don't understand Randian thought. Rand would be against the involuntary and uncompensated dimunition it rights because that dimunition served a collective good.

Freder Frederson said...

If so, you really don't understand Randian thought.

Randian thought is an oxymoron.

You're right though, she didn't care about anything about her own selfish self interest. However, if it meant torturing and imprisoning a bunch of moronic workers who didn't believe in objectivism, I'm sure she wouldn't bat an eye. She was very much like the communists and fascists she supposedly despised in that way. But of course when it came to her weird psycho-sexual relationship with men, she was willing to forget her high principles.

Simon said...

Ann Althouse said...
" Well put, Simon, but I'm sure you agree that if there are going to be some living constitutionalists, there should be some on the right as well as the left. You need the "living" argument articulated for both sides."

Actually I'm not sure I can agree with that. I'd hoped that spending some time mulling this over, I'd have a good answer, but I really don't; the best reply I can muster - which isn't exactly on-point - is that I would take a politically-liberal legal formalist over a politically-conservative living constitutionalist. Of course, if the choice is between a political conservative and a political liberal, both of whom believe in an evolving constitution, between a rock and a hard place I'll take a rock. ;)

I think the problem is that I don't agree with what I take to be your premise: what are the two "sides" of the debate to be represented? I look at this as a matter of process not results, so to me, a conservative living constitutionalist judge doesn't really articulate a philosophy meaningfully distinct from a liberal living constitutionalist judge. From my perspective, (hopefully it makes sense), those two judges would both be on the same side.

PatHMV said...

I think Ann's got it right here, Simon. The left, at the moment, is the political group in favor of the living constitution, mostly because thus far living constitution justices have leaned left. Thus, the living constitution produces results that they favor. Like it or not, the bulk of the American people look at outcome, not process, despite our best efforts to make them understand why process matters.

So the left as a whole sees only the benefits of the living constitution. The abstract possibility that the living constitution could back-fire on them to implement right-wing ideological solutions hasn't done much to make them understand the problem. People are rarely scared of abstract arguments. But give them a real-life, fire-breathing conservative who believes in the living constitution, just a different one than the liberal believes in, and there is suddenly a bogeyman which really will get people's attention.

Also, because mostly the left has, of late, practiced the living constitution, most of us in favor of the unchanging (but for amendments) constitution rarely have an opportunity to criticize real judicial activists on the right.

Thus, the existence of right-wing living constitutionalists, actual judges, can potentially scare the left into realizing the need for following the proper legal process to amend the constitution, while it also gives people like you and me an opportunity to develop our bona fides by criticizing the ideological right-wing living constitutionalists.