As the Sen­ate makes Bush’s tor­ture bill walk the plank, the New York Times reviews Not a Sui­cide Pact by Richard A. Pos­ner:

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 titled vol­ume con­veys his impa­tience with con­sti­tu­tion­al rights…. He … 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.”

Some peo­ple will mock Pos­ner for writ­ing that our “civ­il lib­er­ties [were] designed in and for eras in which the only seri­ous inter­nal threat (apart from spies) came from com­mon crim­i­nals.” After all, the Con­sti­tu­tion was writ­ten while a roy­al­ist move­ment still exist­ed with­in Amer­i­ca, and was amend­ed sub­stan­tial­ly dur­ing and short­ly after a Civ­il War.

Oth­ers will hear­ken­ing to the days when the right-wing was up in arms about abus­es of pow­er by ear­li­er pres­i­dents and say “where are the real con­ser­v­a­tives.” Which is sil­ly. This nation was estab­lished on an insti­tu­tion­al oppo­si­tion to exact­ly the sort of con­ser­vatism that Pos­ner now embraces. For a long time, the lib­er­tar­i­an strain in Amer­i­can pol­i­tics formed a coali­tion with con­ser­v­a­tives to make the Repub­li­can par­ty strong. Thus you had the lib­er­tar­i­an strain on the right, and the lib­er­al strain on the left work­ing to pre­serve liberty.

Clas­si­cal lib­er­al­ism demands a “cul­ture of … dis­trust of gov­ern­ment.” With­out that dis­trust, how does one pro­tect the lib­er­ties that Pos­ner dis­miss­es as rights fetishism. A lib­er­al democ­ra­cy of the sort the Found­ing Fathers envi­sioned does fetishize lib­er­ty, and it’s sup­posed to. The fetishiza­tion of pow­er, which Pos­ner seems to advo­cate, is what the Founders rebelled against, and is also the force that has dri­ven move­ments like fascism.

The ques­tion is not where con­ser­v­a­tives are, but how the found­ing light of clas­si­cal lib­er­al­ism has come to be gov­erned by clas­si­cal con­ser­v­a­tives. Aca­d­e­m­ic argu­ments have con­se­quences, like an inno­cent per­son being sent to Syr­ia to be tor­tured.

Our nation’s lib­er­al­ism makes us all great, and we lis­ten to John Yoo and Richard Pos­ner at our peril.