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.