pageok
pageok
pageok
Michiko Kakutani Criticizes Judge Posner's New Book:

Here's the review. I haven't read the book, and for all I know the book it might be unpersuasive, but the review did not strike me as particularly apt even focusing only on what's within the review's own four corners.

Consider, for instance, this:

Many of Judge Posner's arguments in this book are riddled with self-serving contradictions. While he declares that "the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional," he also argues that "a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety."
Where exactly is there a "contradiction" here (as opposed to a constitutional judgment that the reviewer disapproves of)? Judge Posner is arguing that judges shouldn't strike down government action just because they think the action is unsound; he also argues that judges should uphold government action when they think it is sound. It's true that he's not calling for, say, consistent textualism, under which judges may not depart from the text either in the direction of more constraint of the government or less; he seems to be pointing, at least in the quoted materials, towards an "evolving Constitution" that evolves (at least in some measure) in the direction of more deference to government in matters of national security. But where's the contradiction in that?

The next example of "self-serving contradiction[]" is this:

In another chapter, which discusses warrantless eavesdropping by the N.S.A., Judge Posner shrugs off the concern that government scrutiny of private communications could lead to embarrassment, intimidation or blackmail of the administration's opponents. While he acknowledges that "such things have happened in the past," he says that "they are less likely to happen today" because factors like "the growth of a culture of leaking and whistle-blowing" and "more numerous and competitive media" have converged "to make American government a fishbowl," and "secrets concerning matters that interest the public cannot be kept for long."

Later in the book, however, he suggests that people's privacy (regarding information collected by government data mining) would be better protected if there were more restrictions placed on the news media and "the principle of the Pentagon Papers case" were "relaxed to permit measures to prevent the media from publishing properly classified information."

Aha! Except where's the aha? It's true that Posner is relying on an active press to expose government blackmail, but at the same time willing to restrain the press when it's publishing classified information. At least these two suggestions do point in some measure in different directions, but that hardly makes them "contradictions": Posner is willing to see some fairly narrow extra restrictions on the press, and doesn't think that such restrictions will generally interfere with the press's ability to check government "embarrassment, intimidation or blackmail" that uses government-gathered private communications — an ability that can often be exercised by the press without publishing classified information. At most Ms. Kakutani has identified an example of a Posner proposal (a limit on publishing "properly classified information") that might in some measure limit the checks needed to make another proposal (more government power to engage in warrantless eavesdropping) less threatening. This is worth noting, but it hardly involves a "self-serving contradiction[]" on Posner's part.

Ms. Kakutani goes on to write that "By the end of this chilling book, the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime." The reader naturally expects some examples of illogical arguments of Posner's (since trying to redefine constitutionally guaranteed rights using logical arguments doesn't sound that bad). Here is what the reviewer gives us:

For instance, he expresses irritation with the Supreme Court's 1969 Brandenburg ruling, which stipulated that speech advocating violence or other criminal conduct cannot constitutionally be suppressed unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Although Judge Posner writes that "in the present circumstances the enactment of laws forbidding radical Islamist expression would be needlessly provocative," he ominously adds that "the situation may change" and that he believes "the incitement/threat category could be expanded" to include "generalized advocacy of violence against the United States."

In his opinion, he says, "to tell Congress and the president that they can do nothing to prevent forms of advocacy likely to multiply the number of future terrorists makes no more sense than telling them that they cannot prevent the publication of recipes for bioweapons because it would probably take years to get from the recipe to the actual manufacture, let alone use, of the weapons."

Judge Posner believes that "additional counterterrorist measures, in particular in the related areas of electronic surveillance and computerized data mining, could be taken without violating the Constitution (even if there were a clear constitutional right to informational privacy), especially if the effect on privacy is minimized by a strict rule against using information obtained through such means for any purpose other than to protect national security." And he writes that "coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution."

Again, there's plenty here that reasonable people would disagree with; but where in all of these examples is an argument that's illogical? How is it illogical to argue that advocacy of certain violence, including nonimminent violence, should be unprotected? I don't take this view (which is in some ways closer to the European approach to free speech protection, in which advocacy of nonimminent harm — especially of racial hostility, discrimination, and violence — is unprotected, than to the American), and I've criticized those who have urged it or adopted it. But what's illogical about it?

Likewise, there's nothing illogical about the arguments for broader surveillance or coercive interrogation. One can respond to these arguments on the merits; but the reviewer doesn't do that — she simply relies on the assertion that these particular arguments are evidence "that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime."

There's more, for instance the reviewer's claim that Judge Posner has "a distinctly cynical outlook that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner has asserted that the media merely pander to the demands of their audiences rather than striving to inform the public, so he suggests in these pages that justices simply 'make up constitutional law as they go along,' following subjective criteria instead of striving to uphold principle and precedent." How is the claim that a judge is deciding based on subjective criteria a claim of "the most mercenary of motives"?

Likewise, consider the claim that "Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience's sake. 'The greater the potential value of the information sought to be elicited by an interrogation,' he writes, 'the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach.'"

The trouble is that — especially given a later quote that shows that Judge Posner would bar "the fruits of [coercive] interrogation [from being] used in a criminal prosecution" — Judge Posner's statement that "[t]he Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" is quite correct, and does not at all rely on the Constitution's supposed "fantastic[] elastic[ity]": The Constitution indeed doesn't explicitly prohibit coercive interrogation, so long as the interrogation doesn't involve the person's "be[ing] compelled in any criminal case to be a witness against himself." It may well be that the Constitution should be read as prohibiting coercive interrogation; the Court has certainly so held, and one can read some general concepts, such as "due process" (or for that matter the Ninth Amendment) to include this. But such a reading, even if right, probably requires more "elastic[ity]" than Posner's assertion that "The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" — an assertion that, if mistaken, is mistaken because it treats the Constitution's text as too rigid, not as too elastic.

So the review is not an impressive piece of work, it seems to me. Again, Judge Posner's arguments may well be unsound, but the review certainly doesn't prove it, or even seem to try hard to prove it (as opposed to using pejoratives to assert it).

anonVCfan:
typical of the NYTimes
and also typical of a lot of appellate briefs

You would think that people who get paid to do this sort of thing would be a little better at it than they are
9.20.2006 3:00pm
srg (mail):
It is beyond me why the NYT thinks Michiko Kakutani is qualified to review a book of this kind. The review is the hieght of arrogance and presumption.
9.20.2006 3:17pm
frankcross (mail):
I was taken aback by the review, which seemed based on visceral dislike of the book.

But I think you downplay the press contradiction. Especially when one considers anticipated reactions, or chilling effects. If one is counting on the press to expose malfeasance, one wouldn't favor allowing a self-interested government to prosecute the whistleblower.
9.20.2006 3:20pm
Steve:
The difficult question, which both Posner and the reviewer seem to gloss over, is how we would define "properly classified information," and how we would enforce the distinction without giving the government carte blanche to determine what the press can and cannot publish.

Most of us are somewhere in the middle on this issue - we don't believe there should be no punishment if a newspaper decides to reveal troop movements, but by the same token, we don't favor prosecuting the New York Times because they ran photos of Donald Rumsfeld's vacation home in the travel section. The quote from Posner doesn't tell us one way or the other whether his book makes a persuasive argument as to where in the middle the balance should be struck, or whether he recognizes the difficulty of defining "properly classified information." But I agree that the review hasn't identified an inherent contradiction here.
9.20.2006 3:35pm
David M. Nieporent (www):
Regardless of whether there is a contradiction in Posner's press statement, as Prof. Cross believes, or no contradiction, as EV believes, how is it (as the reviewer calls it) "self-serving" of Posner? Does he gain some personal benefit from these policies above and beyond what he believes all Americans would get in the form of increased security?
9.20.2006 3:53pm
Eugene Volokh (www):
Frank: I appreciate your point, but I still don't see "contradiction" even in that one passage.

No doubt we rely on the press to check government abuses. No doubt the government has some power to restrict the press in some situations (consider the usual First Amendment exceptions), and in particular to punish leaks to the press. We can certainly debate whether the government ought only to be able to punish the leaker -- including through criminal penalties -- or also the press. I suspect that only the former is constitutional, but both of these would have some "chilling effect" on the press's ability to expose government malfeasance.

So the question is one of degree, and of not very great degree. That Posner would impose somewhat greater restraints on the press doesn't create a "contradiction" with his view that the press checks government abuses, especially since many of the abuses that he's trying to check (e.g., government blackmail) aren't going to be covered by his somewhat greater restraints. Posner might well be wrong here, but not self-contradictory.
9.20.2006 3:56pm
Adam:
Sign Ms. Kakutani up for a seat on a district court in Michigan! Judging from that review, she boasts intellectual horsepower equal to that of at least one incumbent.
9.20.2006 4:05pm
josh:
I have to admit that the criticisms of Posner's interpret- the Bill of Rights-with the times viewpoint is misplaced. Posner is not, and has never been to my understanding, a textualist.

On a tangent perhaps, I was struck by something late in P V's post: "The Constitution indeed doesn't explicitly prohibit coercive interrogation, so long as the interrogation doesn't involve the person's 'be[ing] compelled in any criminal case to be a witness against himself.'"

I would think cruel and unusual punishment and due process would prohibit "coercive interrogation," especially if it is of the kind the news reports have said it is. [I don't mean to get this on the tangent of whether the Bill of Rights affords protection to our "War on Terror detainees. I just found it surprising]
9.20.2006 4:07pm
Eh Nonymous (mail) (www):
As usual, both the review, and many of the comments in support of Posner, miss a few notes.

Why bring up the child-selling paper? To demonize him. Did he write it seriously? Well, uh, ask him. Howard did. That really should be off the table for discussion, or even mention. "Let's not forget Chappaquiddick" in nature. Or bringing up the President's struggles with the demon rum.

The point is more that Posner is an eloquent, rational idiot. He pretends to be a pragmatist, then ignores what people with experience say. He uses abstract arguments to bolster supposedly pragmatic arguments - and then fails to address the shortcomings when measured against results.

The military says - almost with a single voice - that torture is not a useful tool. That is, its pragmatic value is zero. There is therefore only a limited benefit to being able to threaten a subject with it. Most wonderful of all for Posner, if there is any report, ever, that torture is in fact used, your credibility is gone, and doesn't grow back. Isn't there some pragmatic value to not being seen, correctly, as a villain and a torturer?

Isn't this why we disliked Saddam?
9.20.2006 4:08pm
Dilan Esper (mail) (www):
One thing that is worth observing here. To those who-- like myself-- see Posner's apparent belief that all sorts of things that are explicitly prohibited by the Constitution are nonetheless permissible so long as they meet his economic cost-benefit analyses as a very dangerous theory, it is a nice reminder that conservatives like Scalia have an important point about textualism. (And I say this even though I don't believe that Scalia actually hews to his expressed principles.)

We may not always like the results that a textualist endorses. But once you start treating the Constitution as a "living, evolving document", you open the door for the Posners of the world to interpret it in the direction of authoritarianism just as much as you open the door for the Brennans of the world to interpret in the direction of civil liberty.

Kakutani's criticism aside, anyone who thinks, as Posner apparently does, that the Fifth and Eighth Amendments permit torture of a person within the United States' jurisdiction as long as someone posits that it may constitute a cost-justified precaution has absolutely no regard for the text or history of the provisions, let alone the very theories of governance that this nation was founded upon. Textualism avoids this sort of obvious mistake.

Posner may know the price of everything, but he certainly doesn't understand the value of the language of the Constitution.
9.20.2006 4:15pm
Dilan Esper (mail) (www):
I should add one more thing. Professor Volokh can assert, with some justification, that the text of the Fifth Amendment (and Fourteenth Amendment) Due Process clause itself was vague-- though it seems to me that the Rochin test is quite well established and consistent with the history of the provision.

But it's not like that's the only provision in the Constitution that prohibits the government from brutalizing a detainee within United States jurisdiction. The Fourth Amendment prohibits unreasonable seizures, and the Eighth Amendment prohibits cruel and unusual punishment. The idea that the Bill of Rights, taken as a whole, left some area open where the government could inflict unrestrained torture on a detainee within United States jurisdiction so long as the detainee could be found not to fit within this or that "category" is one that would be absolutely foreign to its drafters and clearly ignores the fact that this country was founded against the backdrop of this type of treatment of colonists by the Crown.

Posner is an economist who believes, very strongly, in cost-benefit analyses and wealth-maximization. The problem is, the concepts have very little to do with the intention or meaning of the United States Constitution. It's as if an atheist Darwinist wrote a book about the proper interpretation of Christian theology.
9.20.2006 4:24pm
Steve:
We may not always like the results that a textualist endorses. But once you start treating the Constitution as a "living, evolving document", you open the door for the Posners of the world to interpret it in the direction of authoritarianism just as much as you open the door for the Brennans of the world to interpret in the direction of civil liberty.

But let's not pretend that those who claim to follow textualism always hew to the same result. Posner is at least honest when he says he wants to keep the Constitution flexible in order to reach what he views as the right results. But, if you haven't noticed this in the context of the warrantless wiretapping debate, plenty of people who constantly preach about the importance of adhering to the text of the Constitution have suddenly discovered all these new subparts to Article II that don't appear in my copy.

The judiciary is not a battle between intellectually honest conservatives on one side and results-oriented liberals on the other, and only the most rabid partisan could pretend otherwise. The fact is, people who claim to adhere to the original intent or meaning of the Constitution, and nothing more, still seem perfectly capable of reaching opposite results. So please, don't try to claim that danger lies only down one of the two roads.
9.20.2006 4:34pm
Rex:
I prefer Prof. Solove's review. Posner's distinctions between anti-terrorism measures and traditional law enforcement strike me as rather problematic:
Later on, Posner argues that in cases of "special" national security surveillance, if an intelligence officer "discovers that one of the parties to the communication seems to be planning a murder, though a murder having nothing to do with any terrorist plot" then she should "refrain from notifying the authorities." (p. 98-99). This is because, Posner says, "[t]here is much wild talk in private conversations."
9.20.2006 4:44pm
Jack S. (mail) (www):
Correct in her analysis or not, general attacks on Ms. Kakutani ,as some have made here, are a bit unwarranted unless you too have a Pulitzer Prize. Otherwise, try sticking to the merits.
9.20.2006 4:46pm
Salaryman (mail):

Correct in her analysis or not, general attacks on Ms. Kakutani ,as some have made here, are a bit unwarranted unless you too have a Pulitzer Prize. Otherwise, try sticking to the merits.


Sure. And in the same vein, everyone should remember: no "general attacks" (whatever that means) on Yasir Arafat unless you too have a Nobel Peace Prize.
9.20.2006 5:15pm
Mark Field (mail):
To tie two threads together, I'll state that as a "living Constitutionalist", I find Posner's (mis)use of that doctrine appalling.
9.20.2006 5:17pm
David M. Nieporent (www):
Jack:

My snide response would be to point out that as long as Walter Duranty has a Pulitzer Prize, pardon me if I don't genuflect before it.

My substantive response would be to wonder what you're talking about. There were two "attacks" on Ms. Kakutani -- Adam's comment about her "intellectual horsepower," which was admittedly judging from that one review -- and srg's comment about her being unqualified. The former might be rebutted by citing her Pulitzer, but why would the latter? Kakutani is a literary critic. Possibly a good one, if she won a Pulitzer. Why would that necessarily make her qualified to evaluate a book on legal and constitutional reasoning?
9.20.2006 5:17pm
Anderson (mail) (www):
While he declares that "the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional," he also argues that "a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety."

Actually, I think Kakutani is onto something here. The balancing test in her second quotation would work out in practice to the gut reaction in the first quotation.

Balancing tests' rigor was the subject of much humor and mocking here at the VC, when Justice O'Connor was the jurist in question. Now they're brilliant jurisprudence because it's Judge Posner? Nice, guys.
9.20.2006 5:19pm
David M. Nieporent (www):
Mark,

You're hoist by the liberal petard. If you don't want government to use power in ways you don't like, don't give it the power in the first place. (Did you think those "evolving standards" would always evolve in the way you wanted them to?)
9.20.2006 5:21pm
DavidC (mail):
In the first quote, Posner is saying that judges shouldn't make judgements about real-world effectiveness in order to strike down policies, but *should* make such judgements in order to uphold policies that would be otherwise illegal; in other words, the ends should not condemn but may justify the means.

Though not strictly a logical contradiction, it may appear so to one who is used to seeing either "the law should fit explicit limits" or "the law should make sense" as simple rules for judging legislation. Posner seems to propose that either one may be violated in the direction of more oppressive state control-- it's fine for legislation to be either stupid or draconian, as long as it isn't both at once. At least he allows that caveat!

The press case seems a more direct contradiction to me-- effectively saying "the press's scrutiny means we don't have to worry about other controls on government corruption, so let's remove those other controls... and also have less press scrutiny." Of course, as others have pointed out, maybe we could keep the good, beneficial press scrutiny while also tightening controls on the press, if only there were some way to clamp down only on press revelations of matters that turned out, ultimately, to have been "properly" classified. Though even aside from the question of what "properly" means and how to determine it, this quote doesn't seem to delve into the even stickier question of whether it's possible for a "properly" classified matter to nevertheless involve problematic government misbehavior.
9.20.2006 5:22pm
frankcross (mail):
It's not an intrinsic contradiction, I agree, but a pragmatic one, and Posner's entire approach is a pragmatic approach to the law.

Kakutani, by the way, is a guy using a pseudonym. He's generally a good reviewer, but he's a book reviewer across the board and not necessarily at all expert in any particular field.
9.20.2006 5:32pm
Mark Field (mail):

Mark,

You're hoist by the liberal petard. If you don't want government to use power in ways you don't like, don't give it the power in the first place. (Did you think those "evolving standards" would always evolve in the way you wanted them to?)


I'm not sure what the first two sentences have to do with my post. The answer to the question is "no", but I do have a charmingly Jeffersonian faith in the American people.
9.20.2006 5:53pm
Salaryman (mail):
Mark: Just as you don't see what David's first two sentences have to do with your post, I (and perhaps others) have trouble seeing how a "charmingly Jeffersonian faith in the American people" would incline one to favor belief in a "living Constitution" pursuant to which approximately 0.000003% of the American people could fairly freely overturn policy judgments made by a sizeable majority of the American people. (Of course, not all such policy judgments would be made by a sizeable majority, but even those that were should presumably be overturned if they run afoul of the living Constitution.)

An expansive view of judicial power to overturn policy judgments made through the electoral process may be a good idea, but it hardly seems rooted in any meaningful "faith in the American people," however charming or Jeffersonian.
9.20.2006 6:18pm
Mark Field (mail):
Salaryman, you've raised a long and complex discussion, but I assure you there's no contradiction. Some quick highlights:

1. Belief in a living constitution is not directly related to belief in how many laws the courts should strike down. In fact, if originalism (whether original intent or original meaning) became doctrine today, it would result in more judicial interference with the legislative, not less.

2. You're confusing the structural issue of judicial supremacy (which I do favor but only within limits) with the philosophical question of how courts should reach the judgments they do reach. I actually have a fairly restrictive view of when courts should act in a counter-majoritarian way.
9.20.2006 8:42pm
elChato (mail):
What do you expect? She obviously had her word processor set to "shrill." I'm surprised she's not practicing law somewhere.
9.20.2006 8:45pm
Jeff B.:
frankcross -

Michiko Kakutani may be any number of things (a superficial legal thinker among them), but she is definitely not a he and is definitely not a pseudonymous critic. A cursory Google image search would have laid that to rest.

I have no idea where you got the idea that Kakutani was either a male or an assumed name.
9.20.2006 9:05pm
logicnazi (mail) (www):
Good post but I'm hardly surprised.

It is an unfortunate fact that many people have as much difficulty seperating 'logically incoherant' from 'ridiculous' or 'bad idea' as they do with seperating good policy from constitutional policy. Even on this board replies to my coments are often preceded with snarky remarks about me not being logical when what they really mean is that I'm not being reasonable or that I'm wrong.
9.20.2006 9:07pm
Let's See What Byron Calame Does (mail):
This is a copy of the e-mail I sent to the New York Times on September 19th (prior to Prof. Volokh's post):

Re: A Jurist's Argument for Bending the Constitution
> By Michiko Kakutani
> Sept. 19, 2006
>
> I assume, as is the usual tradition, that Richard
> Posner's new book on liberty and security will be
> re-reviewed by someone other than Michiko Kakutani,
> preferably someone with a basic understanding of
> legal philosophy, Law &Economics jurisprudence,
> constitutional theory, and logic. For example, any
> tenured law professor at a first-tier law school.
>
> Kakutani expresses surprise and shock at
> uncontroversial claims by Posner made simply because
> he is a good lawyer. She's shocked that Justices
> "make up constitutional law as they go along,"
> but this is Legal Realism 101. Oliver Wendell Holmes
> has said worse. Everyone is taught that "law is
> politics" in law school, at least at the elitist
> ones a pretentious dilletante like Kakutani is bound
> to respect.
>
> Kakutani says Posner "eschews larger principles in
> favor of utilitarian … analysis." Posner is not
> a utilitarian. Law &Economics analysis is not
> utilitarianism. No one would call Second Circuit
> Judge and former dean of Yale Law School Guido
> Calabresi a utilitarian, though he too is a pioneer
> of the Law &Economics school.
>
> Kakutani declares that Posner's arguments are
> "riddled with contradictions," but her lone
> example does not show a contradiction (to anyone
> familiar with functional relationships expressed in
> Standard English); it shows two subcontraries.
> Posner first claims some counterterrorist measures
> must be constitutional, or else we cannot fight
> terror. He then claims no constitutional right
> should be pared back too much. In other words,
> there is an optimal balance between liberty and
> security. In some cases, there will be too much
> liberty and too little security; in others, too much
> security and too little liberty. Kakutani does not
> seem to understand what an equilibrium is.
>
> She also willfully distorts Posner's arguments.
> Posner claims that at the present level of sanction,
> media scrutiny of government means government
> secrets have less blackmail value against government
> officials because government secrets are exploited
> and reach saturation so quickly. Call it
> overexposure -- the Eva Longoria effect. That does
> not contradict the claim that the media would be
> less tempted to reveal classified information about
> private citizens if it faced greater sanctions for
> revealing classified information about private
> citizens that it got a hold of.
>
> Kakutani finds dubious the claim that judges would
> be less likely to impose death if they were forced
> to heave the executioner's ax. Even if this
> isn't bloody common-sense, Judge Posner would know
> better than Not-A-Judge-Kakutani. It's only a
> dubious claim if one believes the bench is stacked
> with bloodthirsty conservatives just itching to
> kill. This insinuation is both partisan and
> inappropriate for a paper of the Times' stature.
>
> Kakutani also claims that Posner is divorced from
> reality when he declares the Republican Congress is
> no rubber stamp for the national security objectives
> of Bush loyalists. Perhaps she does not read the
> New York Times and is unfamiliar with the names
> Lindsey Graham, John Warner, and John McCain.
>
> Kakutani also is unaware of the academic criticism
> of the 1969 Brandenburg formulation requiring
> imminent lawless action. The problem is that a
> small chance of great harm can equal (or dwarf) a
> large chance of minor harm. There is no reason to
> only take action when the probabilities are high --
> order of magnitude counts, too. Posner is merely
> advocating for coherence in policy-making -- paying
> attention to both sides of the equation. He is more
> like Cass Sunstein than he is like Dick Cheney.
>
> Some of Kakutani's out-of-context quotes are
> mystifying. Apparently, she thinks publishing
> recipes for bioweapons, as a matter of "higher
> ideals" and "enduring values," should be a
> First Amendment right. I suppose, then, she thinks
> we should all have Second Amendment rights to
> nuclear warheads.
>
> But the most offensive piece comes at the end.
> Kakutani's last quotation is simply made up, and
> does not come from Posner's text. Nowhere in the
> book being reviewed does Posner say that the
> Constitution is made of rules that "are made to be
> broken by a president". Kakutani's overuse of
> long quotations throughout the polemic gives the
> impression that this last bit of text in quotes is
> Posner's own words. It is not. Michiko Kakutani
> is, plainly put, a liar.
9.20.2006 9:17pm
MarkM (mail):
My big problem with Posner is that he insists on reading Benthamite utilitarianism into the constitution, despite the abundant lack of evidence that the constitution was ever intended to be read that way.

Philosophy long ago gave up taking this kind of utilitarianism seriously and even economics -- outside of the University of Chicago, that is -- has recognized that credible commitment to certain rules has long run benefits even if there are short-run costs to rigidly adhering to such rules. Additionally, under conditions of imperfect information and uncertainty, cost-benefit calculations become much more complicated than Judge Posner appreciates.

As far as torture, err... coercive interrogation is concerned, the 8th Amendment seems to have it covered. If "cruel and unusual punishment" means anything, it means an agent of the state cannot act with cruelty as punishment for failing to reveal certain information -- which is what "coercive interrogation" is. The framers of the constitution knew what torture was and were using the 8th amendment to extinguish it.
9.21.2006 12:12am
Lev:
Posner is a smart guy, but he has his ..."issues." In his book on The 2000 Election Reality Drama, he was very good leading up to addressing why, constitutionally, the SCt should have ruled in BushvGore, and he was very good in discussing the aftermath of the ruling, but his "constitutional" argument as to why the SCt should insert itself boiled down to, "well, it just should, for the good of the country." Not particularly inspiring.

So, just maybe, some of the same sort of stuff is what Kukutani picked up on.

Is it possible for there to be a "coercive interrogations" that is not torture?
9.21.2006 1:54am
Andrew J. Lazarus (mail):
The genius of the Founding Fathers was an appreciation for the need to structure government to maximize libery. As James Madison puts it (Federalist 51)

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

In contrast, Posner is anti-structuralist and ahistorical. On the one hand he wishes to rely even more heavily on whistleblowers and the press to prevent misuse of vastly greater government intrusion (e.g., easier wiretapping), while on the other he wishes to punish severely whistleblowers and the press when they leak "properly" classified information. Well, this isn't a contradiction in the Euclidean geometry sense, but, lacking angelic "classifiers", there isn't any structure I can think of where Posner's system will work. And, like every single one of his suggestions as excerpted in the review, when it fails it errs on the side of despotism.
9.21.2006 1:33pm
Robert Schwartz (mail):
It is beyond me why the NYT thinks Michiko Kakutani is qualified to review a book of this kind.


Because, in this matter as in all matters, the NYTimes follows Mao Tse-tung thought. "Better red than expert."
9.21.2006 2:53pm
poster child (mail):

As far as torture, err... coercive interrogation is concerned, the 8th Amendment seems to have it covered. If "cruel and unusual punishment" means anything, it means an agent of the state cannot act with cruelty as punishment for failing to reveal certain information -- which is what "coercive interrogation" is. The framers of the constitution knew what torture was and were using the 8th amendment to extinguish it.


It seems to me that you're minimalizing the "punishment" part of "cruel and unusual punishment." Coercive interrogation isn't punitive but rather investigatory in nature. The purpose of the 8th Amendment is to put limits (i.e., nothing cruel and unusual) on the sort of punishment that may be meted out after investigation and adjudication. The 5th Amendment addresses the suspect's right to refrain from making self-incriminating statements (including, one would suppose, those made during coercive interrogation).
9.21.2006 2:55pm
Bruce Wilder (www):
"Coercive interrogation isn't punitive but rather investigatory in nature."

I think I'm with MarkM on this. That's not a distinction, which any sentient human being with an ounce of decency would hold. We might as well not have either laws or a Constitution, if the 8th amendment doesn't prohibit torture as a "method of interrogation".
9.22.2006 10:04pm
David M. Nieporent (www):
Bruce,

The problem with your argument is that the Constitution is not a set of ethical principles. It is a set of laws. "Decency" is not the standard by which we interpret laws. What the law actually says is.

Pre-13th amendment, the Constitution permitted slavery. Was that indecent? Yes. It nonetheless was the case. If you didn't like it, your remedy was to amend the constitution, or even to overthrow the government, but not to denounce the messenger who pointed out to you that it did.
9.24.2006 2:47am