Weakening the Bill of Rights: A Victory for Terrorism

What is most remarkable about Richard Posner’s latest book-and he has written many-is that he argues that we should repose full confidence in the executive branch to handle the most sensitive constitutional issues of our time without once mentioning the flagrant breaches of law and critical falsehoods with which President Bush and his administration have deluged the public since 9/11. This only seven years after he composed a lengthy tome regarding President Clinton’s impeachment in which he appropriately, if harshly, condemned the president for his unethical and illegal conduct, principally his deliberate lies and purposeful lack of candor with the American people. Nor, although perhaps less directly relevant to his present book, does Posner discuss at any point the lawlessness and deception of President Nixon and his high aides and advisors, let alone the Iran-Contra affair under the Reagan administration or the countless other executive branch abuses of power we have suffered in the past twenty-five years. Posner’s omissions critically undermine the central argument of Not a Suicide Pact: The Constitution in a Time of National Emergency. Posner advocates a shrinking Constitution whenever the country faces a national emergency; he advises that in such times, we should look exclusively to the executive branch, not the courts, to safeguard our most valued freedoms because judges “know[] little about the needs of national security” (p. 9). Apparently Posner’s answer to the problem of balancing national security with liberty is to simply leave the fate of our Constitution to George W. Bush and Dick Cheney. Although Posner writes eloquently about history, he seems to have learned little from it–or from current events that appear on the front pages of our newspapers daily. The problem with Posner is not his writing, which is excellent. The problem is his judgment, which is not.