not a suicide pact the constitution in a time of national emergency sep 2006

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not a suicide pact the constitution in a time of national emergency sep 2006

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Not a Suicide Pact: The Constitution in a Time of National Emergency Richard A. Posner OXFORD UNIVERSITY PRESS not a suicide pact . . . series editor Geoffrey R. Stone r i g h t s s e r i e si n a l i e n a b l e Lee C. Bollinger President Columbia University Alan M. Dershowitz Felix Frankfurter Professor of Law Harvard Law School Richard A. Epstein James Parker Hall Distinguished Service Professor University of Chicago Law School Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School Alexander Keyssar Matthew W. Stirling, Jr. Professor of History and Social Policy JFK School of Government, Harvard University Michael J. Klarman James Monroe Distinguished Professor of Law and History University of Virginia Larry D. Kramer Richard E. Lang Professor of Law and Dean Stanford Law School Lawrence Lessig C. Wendell and Edith M. Carlsmith Professor of Law Stanford Law School Michael W. McConnell Judge U.S. Court of Appeals for the Tenth Circuit Martha C. Nussbaum Ernst Freund Distinguished Service Professor, Philosophy, Law, Divinity, South Asian Studies The University of Chicago Richard A. Posner Judge U.S. Court of Appeals for the Seventh Circuit Jack N. Rakove William Robertson Coe Professor of History and American Studies Stanford University Geoffrey R. Stone Harry Kalven, Jr. Distinguished Service Professor University of Chicago Law School Kathleen M. Sullivan Stanley Morrison Professor of Law and Former Dean Stanford Law School Laurence H. Tribe Carl M. Loeb University Professor of Law Harvard Law School Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Not a Suicide Pact . . . the constitution in a time of national emergency Richard A. Posner 2006 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2006 by Oxford University Press Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Posner, Richard A. Not a suicide pact : the constitution in a time of national emergency / by Richard A. Posner. p. cm. Includes index. ISBN-13: 978-0-19-530427-5 (cloth) ISBN-10: 0-19-530427-6 (cloth) 1. Civil rights—United States. 2. National security—Law and legislation—United States. I. Title. KF4749.P67 2006 342.7308'5—dc22 2006005345 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a sui- cide pact. —Justice Robert Jackson, dissenting in Terminiello v. City of Chicago (1949) . . . While the Constitution protects against invasions of individual rights, it is not a suicide pact. —Justice Arthur Goldberg, for the Court, in Kennedy v. Mendoza-Martinez (1963) . . . As Justice Jackson put it in a now often-quoted remark, we cannot allow our Constitution and our shared sense of decency to become a suicide pact. —Professor Ronald Dworkin, in the New York Review of Books (2002) This page intentionally left blank Editors’ Note ix Introduction 1 chapter one How Are Constitutional Rights Created? 17 chapter two How Does National Security Shape Constitutional Rights? 31 chapter three Rights Against Detention 53 . . . Contents chapter four Rights Against Brutal Interrogation, and Against Searches and Seizures 77 chapter five The Right of Free Speech, with a Comment on Profiling 105 chapter six Rights of Privacy 127 Conclusion 147 Further Readings 159 Index 165 contents . . . Editors’ Note We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalien- able Rights. . . . —The Declaration of Independence This volume is the first in a new series on Inalienable Rights. Each book illuminates why a right or set of rights is in the Constitution (or has remained outside it), and then explores the controversies the right has provoked. Rights invite discussion: What is a constitutional right? What are the counterbalancing duties? Rights are often inde- terminate and under pressure from a variety of sources. Authors in this series have their own points of view, and in these volumes they will declare and defend them. Civic debate is at the heart of the American political process. The Inalienable Rights series is designed to challenge readers to question their own assumptions about these foundational canons of our society. Richard Posner’s Not a Suicide Pact: The Constitution in a Time of Na- tional Emergency addresses a key dilemma as we struggle to maintain [...]... percent—an annual saving of less than half a statistical life?” Those are not good questions We have no idea whether the probability of another 9/11 (or worse) is only 1 percent The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable... of informational privacy as a constitutional right separate from the rights conferred by constitutional provisions, such as the Fourth Amendment, that forbid particular methods of invading privacy I argue further in that chapter, picking up a theme first sounded in Chapter 4, that mining the vast amount of personal information stored in public and private computer databases is a critical weapon against... that they tend to be pragmatic (pragmatism is the American national culture), hence forward-looking rather than slaves to history Anyway, they are lawyers rather than historians, and, being lawyers, treat history not as a guide but as a trove of anecdotes and rhetorical flourishes And because they are trained in the common law, which is a body of law made by judges, it comes naturally to them to make constitutional... extremist Islamic expression in this country has not yet been made Regarding the third issue, that of censoring the media, I argue that an American version of the British Official Secrets Act may be needed in order to seal leaks of classified material that are harmful to national security or that invade personal privacy, and that such a law would not violate the Constitution I also note that it may become... thought interpretive rather than creative But both the literal and intended meaning of the original text may have been abandoned in the process For reasoning by analogy is slippery Invariably there is a choice of analogies Advocacy of revolution could have been analogized to solicitation or incitement to crime rather than to political agitation Wiretapping could have been analogized to eavesdropping,... legally and even constitutionally problematic responses Imagine strict quarantining and compulsory vaccination in response to a pandemic, or the imposition of martial law in response to a catastrophic earthquake, volcanic eruption, tsunami, or asteroid strike When New Orleans was inundated as a result of Hurricane Katrina in the late summer of 2005, proposals to use soldiers to help maintain law and order... objections based on long-standing fears of military intervention in domestic crises, fears that had been codified in an 1878 law called the Posse Comitatus Act The act had signaled the end of the post–Civil War Reconstruction era by making it a crime to use the federal armed [3] not a suicide pact forces (as distinct from the state militias the National Guard) for law enforcement unless an act of Congress... history of emergency measures that goes back to the founding of the nation, this is not a work of history Thus I am not much interested in what rights rebels and their sympathizers might have in a civil war The threat of another civil war is not what is placing pressure on constitutional rights today The pressure is coming mainly, though not entirely, from the threat of terrorism in a world increasingly... legally justified A recurrent theme of the book is that a nonlegal “law of necessity” that would furnish a moral and political but not legal justification for acting in contravention of the Constitution may trump constitutional rights in extreme situations The limits of legal codification as a method of social control are especially acute in the context of national security; that is the lesson of the. .. constitutional values as constitutional rights are It would be odd if the framers of the Constitution had cared more about every provision of the Bill of Rights than about national and personal survival In times of danger, the weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are narrowed In safer times, the balance shifts the other way and civil . Law Harvard Law School Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Not a Suicide Pact . . . the constitution in a time of national emergency Richard A. Posner 2006 Oxford. society. Richard Posner’s Not a Suicide Pact: The Constitution in a Time of Na- tional Emergency addresses a key dilemma as we struggle to maintain editors’ note [ x ] our equilibrium in an era of intense. the past several years on catastrophic risks, international terrorism, and national security in- telligence has persuaded me that we live in a time of grave and in- creasing danger, comparable

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