We Slowly Become The Things We Despise Most

... well, only if we are intellectually lazy and guided by emotion rather than logic. While not perfect in this, I had to give up on many cherished political traditions I had when I was young, once I took an objective, non-emotional view of them. Unions, for example, were hard to give up on, but I have come to the conclusion, there days of usefulness are long, long past.

Here's what it looks like when judges and fine legal minds contort themselves to hang on their goals instead of their principles. It's a little long, but worth the investment:



Judge Richard Posner's comments in the New Republic on how he would go about deciding the constitutionality of the NSA surveillance program are refreshing for their honesty:

You [Professor Philip Heymann] say that "First we have to address ... the defiance of legislated prohibitions and the absence of published standards and any known system of accountability to the other branches." Why first? The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program. I would try to find out as much as I could about the program--its contribution to national security and the inroads it makes on liberty and privacy--before I started waxing indignant over it, and that indeed is what I have tried to do, and the result of that inquiry is my article. I missed such an inquiry in the letter to Congress you co-signed that was published in The New York Review of Books.

The ironies abound. If this is how defenders of the NSA program must proceed in order to argue for its legality, they well fit the caricature of judicial activism that generations of conservatives have tarred liberals with when liberals argue for extensions of civil rights and civil liberties protections. That is, instead of being constrained by law in the first instance, defenders argue that a program would be good policy and therefore strain to find that it is not illegal or unconstitutional.

Posner, however, is no ordinary conservative. He has long abandoned the belief that one must speak in pious platitudes about doing what the framers intended, or not legislating from the bench. He regards all this as mere blather designed to mystify what is really going on in legal decisionmaking. Instead, he views the judicial task "pragmatically," in his words, as an extension of ordinary policy discourse, which is only mildly constrained by legal texts and doctrines, if at all.

Posner's candor lays bare a jurisprudential problem for both sides of the ideological spectrum. Defenders of the President must come up with what I can only regard as makeweight legal arguments for justifying what he has done, arguments that would indeed require judges to legislate from the bench, if that hackneyed phrase has any meaning. (For those of who you want a detailed defense of that claim, I direct you to Marty's many posts on this site.)

Moreover, the muscular presidency that the Republican Party now promotes also has little connection to the original understanding of the President's power, despite Professor Yoo's valiant efforts to selectively quote sources to suggest that it is so. Rather, the best defense of expanded Presidential power is that the Constitution must keep up with the times, or as it is so often put, that "9-11 changed everything." That is to say, to justify their constitutional claims, defenders of the President must become that most dreaded and hated of liberal stereotypes, a bevy of living constitutionalists.

But lest liberals rejoice in this irony, it is worth noting that Posner's candor challenges them as well. Posner has dared critics of the President to abandon a debate about what the rule of law requires and concern themselves only with what the best policy is. To respond to this challenge, critics must rediscover and renew their faith in the rule of law-- in the importance of law as an institution that constrains arbitrary power even when that constraint also prevents *them* from doing what they think just and right.