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.