23 August 2006

Posner on Our Quaint Constitution

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!


From here.

I can understand when someone with very little understanding of the law, or a populist politician, fails to understand the importance of following the law, including the United States Constitution. I have considerably less patience for senior U.S. Court of Appeals judges, such as Judge Posner, he fail to grasp this point and show contempt for the institution of the judiciary of which they are a part, when it is their job to enforce that Constitution, particularly in the context of a very public Wall Street Journal op-ed piece.

Indeed, as a sitting judge before whom these issues are likely to appear, it really isn't proper for him to be discussing these points at all. His opening disclaimer notwithstanding, he has gone far beyond what is appropraite for a judge. What did he say?

I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security. . . . We are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court. The Hamdan decision suggests that a majority, albeit a bare majority, of the court is unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs.


With all due respect he is simply wrong when he states that:

Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant.


He implies that it might be a good idea for the Congress to strip the courts of jurisdiction over such matters. The full editorial is here.

Posner has outed himself. He is no originalist. Indeed, he doesn't really believe in the rule of law at all. No one is asking judges to formula battle plans, to decide with whom we ought to go to war, or decide which weapons we ought to buy. Cases like Hamdan and the NSA case just decided by a U.S. District Judge in Detroit, are enforcing recently enacted statutes placing specific limitations on the executive branch which the judicial branch is enforcing.

There is nothing new under the sun (Ecclesiastes 1:9). The tyranny of political leaders intent of ignoring the law was around in the 18th Century, and our Constitution's Bill of Rights and separation of powers were designed to address that issue. Call me quaint, but I'll keep our constitution, for my own safety's sake.

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