Sunday, November 26, 2006

Posner's Paean to Totalitarianism

“... you nullify the word of God for the sake of your tradition.”
Matthew 15:6

In dealing with what amounts to a permanent state of emergency resulting from the threat of mass terrorism, the federal government “could be authorized by a constitutional amendment to curtail particular civil liberties in times of national emergency,” writes Judge Richard Posner in his recent book Not A Suicide Pact: The Constitution in a Time of National Emergency. “But alternatively it [the federal government] could be (as at present it is) denied that legal authority yet acknowledged to possess the power, and even the moral duty, to violate legal, including constitutional, rights when necessary to avoid catastrophic harm to the nation.”

Posner is the former chief judge on the Seventh Circuit Court of Appeals. In the early 1960s, he was a clerk to Supreme Court Justice William Brennan. Students of Brennan's career will recognize that Posner shares his thoroughgoing contempt for the Constitution. They may be surprised, however, by Posner's brusquely dismissive treatment of civil liberties.

Funny, he doesn't look evil: Richard Posner, apologist for totalitarianism and torture

Violations of individual rights are a given, from Posner's perspective. The only question worthy of examination is whether there would be merit in continuing the charade of living in a constitutional republic by formally amending a charter of government the regime can ignore at any time our rulers choose to do so.

The subject of torture, predictably, offers Posner's most pointed illustration of what he considers the “law of necessity" (or what Noah Webster, understanding the cynical uses to which ruling elites invoke emergency powers, disapprovingly called the "old stale plea of necessity").

“Even torture may sometimes be justified in the struggle against terrorism, but it should not be considered legally justified,” Posner writes. Under the government's “necessity” defense, continues the judge, the regime would enjoy “a moral and political but not legal justification for acting in contravention of the Constitution [that] may trump constitutional rights in extreme situations.... Civil disobedience can be a duty of government in extreme circumstances to its citizens even if not a right.”

Here we see a remarkable, albeit not entirely unpredictable, inversion of a familiar concept.

For decades, protest movements of various kinds – from Civil Rights and anti-Vietnam demonstrators in the 1960s, to some elements of the Right to Life Movement more recently – have invoked the “necessity defense” to justify nominally illegal behavior, most of it non-violent. Often at the periphery of such movements can be found activists who unabashedly engage in criminal behavior, ranging from theft to vandalism to bombing.

Those who defend law-breaking of both varieties invoke the “necessity defense”: The moral imperative to prevent a great evil (such as abortion, aggressive foreign war, systematic denial of civil rights to racial minorities) justifies the violation of unjust positivist laws, or activities that run afoul of less “important” laws (such as those against trespassing or riot, for instance).

To their credit, at least some of those who have engaged in genuine civil disobedience have observed a critical distinction between what they practice and common lawlessness: They are willing to pay the price for breaking the law when they discern a necessity to do so. This is one important distinction between civil disobedience and mere antinomianism.

Not surprisingly, although Posner lays claim to the concept of “civil disobedience,” he pointedly exempts the government and its agents from accountability to law. This is because for Posner – as for most of his comrades in the judiciary – the State is the law.

This is the gravamen of the 1936 Supreme Court decision United States vs. Curtiss-Wright Export Company, at least as Posner reads it: The power of the “national” state “is not limited to the powers explicitly granted by the Constitution....” (Interestingly, the Anti-Federalist faction anticipated this outcome – the supplanting of a federated republic with a “national” regime -- during the 1788 debate over ratifying the Constitution, and further foresaw that this would be brought about through the judiciary.)

As the supposed embodiment of the national State, the president enjoys effectively illimitable powers, according to Posner. Under what he calls “the Curtiss-Wright principle,” Posner suggests, the president “can do anything if the emergency is dire enough” -- even though he cavils over whether or not outright dictatorship finds a “handle in the constitutional text.”

John C. Yoo: Legal scholar, advocate of presidential dictatorship, defender of sexual torture of children.

The Bush regime, it must be noted, doesn't equivocate about the president's supposed authority to do anything he deems necessary to anyone of his choosing. Witness the properly notorious statement by John C. Yoo, a pre-eminent architect of the regime's legal doctrines, to the effect that the president can properly authorize the sexual mutilation and torture of children as a way to extract confessions or "intelligence" from the child's parents.

Agents of the Bush regime practice their version of "civil disobedience," as defined by Posner

At one point, Posner addresses a critical and largely ignored distinction, that distinguishing "authority" from "power." While the government in general, and the president in particular, have the power to do more or less anything, they have only the authority to do certain specific things. At least that's how people who understand and respect the American constitutional system would define that distinction.

Speaking on behalf of the totalitarian tradition, however, Posner insists that the concept of authority -- that is, delegated, limited, and revocable specific powers -- has been rendered moot during the perpetual state of emergency under which we now live. We simply have to recognize that "reliance on the executive's willingness to exercise raw power in extreme circumstances may be preferable to recognizing a legal right to do so."

What's the whole point, then, of even having a written Constitution?

The thrust of Posner's argument is that the text of the Constitution is inconsequential, except as a noble lie intended to palliate the sentiments of those ruled by the Regime.

Witness this remarkable statement:

“My subject is constitutional rights, so I shall not be concerned with limitations on government power that do not protect such rights.”

This statement could not issue from anybody with a rudimentary understanding of the Constitution, and respect for its principles and purposes. The constitution's chief limitation on government power consists of its specific enumeration of government powers and functions contained in the document: Where government power is concerned, that which the Constitution doesn't explicitly authorize, it forbids.

Posner, however, begins with the totalitarian premise that government's power is all-encompassing save for those exceptions it condescends to make. This is made clear literally in the first sentence of the book:

“This is a book about the constitutional rights that impinge on the measures for the protection of national security that the US government has taken in response to the terrorist attacks of September 11, 2001."

To “impinge” is to “encroach,” to “transgress,” to “infringe,” or to commit aggression. Thus Posner considers individual liberties to be a form of aggression against the rights of government.

This is to say that the judge correctly depicts the relationship between the individual and government to be one of predator and victim; he simply assumes – contrary to all recorded human history – that the State is the victim, and the individual the offender, in that relationship.

Oddly enough, Posner considers the “victimized” State to partake of a deified nature. The American perspective on government and rights dictates that rights are an individual endowment from the Creator. Here's Posner on the question of “rights”:

“It is natural to think that constitutional rights are rights stated in the text of the Constitution of the United States. But it is wrong.... Constitutional rights are created mainly by the Supreme Court of the United States by `interpretation' of the constitutional text.”

(Posner makes a point of disparaging the insights of the Framers of the Constitution, who, he observes, "were not demigods" -- unlike the divine entities who adorn the federal judiciary, from which they ex-nihilate "rights" or revoke existing ones as suits their omnipotent whims.)

By this claim, Posner literally exalts the power of the judiciary above that of the Creator, thereby explicitly fulfilling the prediction made by the Anti-Federalist author “Brutus” (the writer behind that pseudonym is believed to have been a judge himself -- Robert Yates of New York): “There is no power above them [federal judges], to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

While Posner displays unalloyed disdain for the Constitution and the Creator, he does recognize at least some limits to the power of the judiciary: He notes that the courts generally defer to the other branches when there is a consensus between the executive and legislature; and he points out that the courts are reverent to the point of abject superstition in their application of stare decisis, at least when dealing with post-New Deal precedents.

What we are left with is a claim that the central government's power, when exercised by the president with the deference of Congress, is essentially inexhaustible, and that it is possible to “bend” constitutional law into any shape necessary to facilitate the exercise of those powers. And what of those of us on the receiving end of those powers? Well, “freedom” consists of whatever the State, in its grace, sees fit to bestow on us.

“The general argument [of my book],” writes Posner, “is that the scope of constitutional liberties is rightly less extensive at a time of serious terrorist threats and rapid proliferation of the means of widespread destruction than at a time of felt safety, but that the degree of curtailment required to protect us is not so great as to impair the feeling of freedom that is so important to Americans. It would leave intact the essential structure of constitutional liberties that the Supreme Court has been building since the 1950s and 1960s.” (Emphasis added.)

As long as we “feel” free, the State is permitted to do whatever it pleases. It's worth pointing out as well that the judicial traditions Posner alludes to are of very recent vintage, and they were designed to abet and facilitate the expansion of central government power.

In this way, our republic's law – the Constitution – has been nullified for the sake of a totalitarian “tradition.”

A quick note --

There will be a "Review of the News" installment posted here later today. Soon -- hopefully within the next week or so -- that feature will be up and running over at The Right Source.

I'd like to offer a quick thank you to dixiedog for being a productive nit-picker; he helped me find and correct a mis-spelling in the essay above.


Trish, Comic Mom said...

Meanwhile the masses vote on American Idol and fill their water cooler chatter with who is a better singer/actor/dancer, et al. Oh, but what was that thing about habeas corpus?

A wonderful French grandmother who sits for our three children at the gym while mommy grabs a few 20-minute workouts when time permits, was talking with this thinking mama the other day regarding our nation. "Well, it's not a police state yet . . ." she said with confidence, in her fabulous French accent. Then I told her about the woman who was murdered in her bedroom, while shooting with her legally registered gun at the police who'd entered said bedroom. She realized she'd been wrong about our country's supposed lack of a police state. I read about this murdered woman, and her honored murderers, in your blog.

Thanks for educating us all, Will!

rick said...


this posner fella has clearly lost his mind. he won't find it here on earth. neither will he find it in heaven. man, satan sure is busy with the spreading of his doctrines. but then again, maybe i'm blaming something on satan that he did not do? maybe this is what happens to people who don't have God?--they lose their minds.

dixiedog said...

I loathe being a picker of nits, really, but just one clarification, if I may. When you stated this:

(...the divine entities who adorn the federal judiciary, from which they exnihiliate "rights" or revoke existing ones as suits their omnipotent whims.)

Did you actually mean ex nihilo rather than exnihiliate, i.e. create rights ex nihlio (out of nothing)? Not a big I'm prone to coin words and construct phrases therefrom that do not exist but manage to provide the intended and appropriate imagery in the reader's or listener's mind ;).

Only a heathen extraordinaire could make statements like the following in earnest. Posner, by definition, must be a bona fide humanist and atheist. These sections penned by Posner are indeed remarkable (more like fallacious in the extreme):

it [the federal government] could be (as at present it is) denied that legal authority yet acknowledged to possess the power, and even the moral duty, to violate legal, including constitutional, rights when necessary to avoid catastrophic harm to the nation.”

and this:

...the regime would enjoy “a moral and political but not legal justification for acting in contravention of the Constitution [that] may trump constitutional rights in extreme situations.... Civil disobedience can be a duty of government in extreme circumstances to its citizens even if not a right.”

Morally justified, but not legally justified?? He seems to be arguing, among a myriad of other dastardly points, that "morality" is sourced from mere men, whereas "legality" is sourced from a higher echelon, say, the deified judicial demigods? Huh?? From what source does his view of morality flow from? If anything, morality is a set of precepts that are unchanging, from a higher source than mere men (from God Almighty Himself, doh!), whereas mere legality comes and goes on a whim. Torture is never morally justified, ever, but legally, it can be made "right" in the eyes of men. Hey, it's legal, so it must be right, because the State says it is!

Ergo, Judge Poseur, uh Judge Posner, sorry, should've sung a different tune in his personal, self-penned State bible. Perhaps the following:

"Even torture may sometimes be justified in the struggle against terrorism, but it should not be considered morally justified,” Posner [should've] writes [written]. Under the government's “necessity” defense, continues the judge, the regime would enjoy “a legal and political but not moral justification for acting in contravention of the Constitution [that] may trump constitutional rights in extreme situations...

Why is it that a guy like me, without even a HS education mind ya, can see the fallaciousness throughout this poseur's arguments? Yet, I'll say many, if not most, ordinary folk, yes well-educated [indoctrinated] ordinary folk will agree with, and accede to, this mantra, prima facie, especially if Amazon's customer reviews are any indication. A couple of reviewers listed, however, do seem to understand and grasp the totality of what this poseur is preaching.

I seem to recall the Washington Post reporter Michael Weisskopf claiming the Christian "Right" as being "largely poor, uneducated, and easy to command." I have to admit that I see something quite different in REAL life. I see a hodgepodge of atheists and pagans as "largely rich, well-educated, and thereby VERY easy to command."

Captain Kirk said...

It just seems like the notion that the government exists to serve the people is a forgotten and lost ideal. It just seems that "we the people" have made ourselves so beholden to the government through the system of entitlements, e.g., welfare benefits, grants and loans for students, corporate subsidies, etc, that the government knows that it can get away with most anything simply by revoking a "free lunch" here or there and making a public example thereof of the individual or group who formerly received said "free lunch".

If it appears that I am describing the government with attributes of a sentient entity, that is intentional. As I see it, the government, i.e., the State, has emerged as an entity that exists independently from the people and requires that it be served by the people. In my short 43 years on this rock, I have watched the State act as a jealous god that seeks to supplant the True and Living God. I have seen the personal work-ethic supplanted with the idea that it is ok to do just what is needed to get by because the State will pick up the slack. As I see it, these two changes are largely responsible for where we are today and for the creation of the mind-set found in people like Mr. Posner.

Will, I want you to know that a 18 months ago, I was happy to go with the flow becuase I thought I was doing the right thing, in a civic sense. However after the short time our families spent together in Wisconsin and after reading through your writings, I realize now what a mess our country is in. I am no longer content to sit idly by while the Republic crumbles around us and is supplanted by an Empire. I, once and again, want to thank you for elightening me.

DRS said...

Seeing the title of Posner's book (Not a Suicide Pack) reminded me of the first time I had heard that phrase applied to the Constitution. It was in the video "The Subversion Factor" featuring G. Edward Griffin.

Near the end of the video, Griffin states that enemies of freedom (which were the communists in those days) have taken advantage of our civil liberties and that "the Constitution was never intended to be a national suicide pact."

This statement always bothered me because it implied that violating the Constitution is somehow necessary in order to preserve it.

Of course today's enemy is now the terrorists. I wonder if there is much similarity between the violations of civil liberties tolerated by conservatives due to communist subversion vs. the violations now embraced in the "war of terror"?

Regardless I'm glad you are tackling the subject of civil liberties from a constitutional-conservative perspective. I feel this is looooooong overdue from our side. Just because the ACLU occasionally gets it right doesn't mean conservatives should automatically embrace the opposite. I look forward to your book.

David Stertz