A Streak of Yellow in the Law of Economics

I've always been suspicious of the law in economics crowd. I've been withholding judgment, however, because their scholars argue well and, in many instances, applying such a practical and amoral theory to law (amoral in the sense of leaving all judgment out of the analysis, not in the sense of being immoral) simplifies analysis (which is often a relief) and results in many fair decisions for many people. But I couldn't put my finger on my reluctance to apply it whole hog. Until the book review from Michiko Kakutani - herself no slouch - clarified it for me (attached below). Applying legal doctrine completely devoid of any moral analysis is like building your house out of cards - simple to do and, perhaps, aesthetically pleasing even, but not sturdy or safe in bad weather. This, in turn, explains my frustration with so many economists with whom I attempt to engage online - they purposefully avoid moral questions in their economic analyses. It's my theory that people who attempt to avoid moral questions are l-a-z-y. It's easy to be brilliant when we avoid moral questions because those are the hard ones to answer. In fact, some say they're unanswerable. But if one doesn't grapple with them, then one is seeking answers by shoving one's head in the sand. And that's why I feel unsafe when I argue with economists who refuse to see the morality (read, the humanity) behind all their numbers and cost/benefit equations - because they're the ones most likely to turn you over to the government in times of terror. It's easy to do when you don't see the human faces behind the government's objectifications of its citizens.

*******************************************************************
NY Times, September 19, 2006
Books of The Times
A Jurist's Argument for Bending the Constitution
By MICHIKO KAKUTANI

Citing national security concerns in the wake of the terrorist attacks of Sept. 11, the Bush administration has repeatedly sought to expand presidential power, often doing so in secret and sidelining both Congress and the judiciary.

President Bush secretly authorized the National Security Agency, in search of evidence of terrorist activity, to eavesdrop on Americans without obtaining a court-approved warrant. The administration claimed that the president's war powers gave him the authority to detain people indefinitely and deny them access to lawyers and the courts - a policy it would later have to modify in response to challenges in the courts. And it pursued a plan to put detainees held at Guantánamo Bay on trial before military commissions, a plan that the Supreme Court in June said violated United States law and the Geneva Conventions.

The Bush administration's assertion that the war on terror is a new kind of war requiring new rules and a new equation between liberty and security is vehemently echoed by Richard A. Posner's alarming new book, Not a Suicide Pact: The Constitution in a Time of National Emergency.

In addition to being a judge on the United States Court of Appeals for the Seventh Circuit, Judge Posner is a prolific author, a lecturer at the University of Chicago Law School and an intellectual leader of a school of jurisprudence that has pioneered the use of economics to analyze legal issues. He is known for his willfully provocative opinions - he once co-wrote an article recommending the private sales of babies - and the positions he takes in this volume will not only fuel his own controversial reputation but also underscore just how negotiable constitutional rights have become in the eyes of administration proponents, who argue that the dangers of terrorism trump civil liberties.

The very language Judge Posner uses in this shrilly [ed. - brilliant use of this adjective] titled volume conveys his impatience with constitutional rights, while signaling his determination to deliver a polemical battle cry, not a work of carefully reasoned scholarship. He writes about lawyers' "rights fetishes," complains about judges' "thralldom to precedent" and declares that the absence of an Official Secrets Act - which could be used to punish journalists for publishing leaked classified material - reflects "a national culture of nosiness, and of distrust of government bordering on paranoia."

Near the beginning of Not a Suicide Pact Judge Posner writes that "rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals."

He argues that "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." And he concludes that "the importance of demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of repression that so often accompany our entry into war, including the war against Al Qaeda."

This willingness to bend the Constitution reflects Judge Posner's archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. It is 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.

In fact, 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."

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."

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."

Other arguments in this volume are no more than unsubstantiated - indeed, highly dubious - assertions. Judge Posner writes that "it is better that the president assume the full responsibility for national security surveillance than that responsibility be diffused" by involving judges because "when power is concentrated, so is responsibility": "There would be fewer executions," he reasons, "if the sentencing judge had to administer the lethal injection." [ed. - this is probably true.]

Judge Posner also insists that there is little reason for the judicial branch of government to act as a check on presidential overreaching when national security measures are agreed upon by Congress and the White House, because the legislative and executive branches "are rivalrous even when nominally controlled by the same political party." [ed. - but how he can assert this is beyond me. Perhaps I'm just not smart enough.] The Republican Congress, he asserts in the face of overwhelming evidence to the contrary, "has not been a rubber stamp for the national security initiatives of the Bush administration."

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. 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."

So is there anything Judge Posner thinks the Constitution forbids? He writes: "But there is no handle in the constitutional text for the unilateral assumption of dictatorial powers by the president, no matter how desperate the circumstances. We don't want the Constitution to be just an old piece of parchment."

That snarkily delivered "just," along with the use of the adjective "unilateral" to modify "assumption of dictatorial powers," says it all: this book suggests that Judge Posner does regard the Constitution as an old piece of parchment - a piece of parchment with certain rules, but rules that "are made to be broken" by a president during an emergency, no matter how long that emergency may last.

===