‘How to Skip the Constitution’: An Exchange

To the Editors:

Professor David Cole, who doubles as the legal affairs correspondent of The Nation and has received awards from the National Lawyers Guild and the American Muslim Council (founded by Abdul Rahman al-Amoudi, a supporter of Hamas and Hezbollah who in 2004 was sentenced to twenty-three years in prison for illegal dealings with Libya), is far to the left on matters of civil liberties and national security. As I noted in my book Not a Suicide Pact: The Constitution in a Time of National Emergency, which Cole reviewed in your November 16, 2006, issue (“How to Skip the Constitution”), Cole is on record as having recommended, after the 9/11 attacks, that civil liberties should be expanded beyond the capacious extent that they had attained under the Warren Court in the 1960s.

I attribute to his political commitments the distorted impression that his review conveys of my book. In particular he thinks that any policy which I believe is constitutional I also believe is desirable, such as banning extremist Islamic rhetoric, which I say in the book I do not favor. I also do not propose punishing the media for publishing classified material, and I argue that it should be a defense to such a prosecution that the material published should not have been classified, since overclassification is rampant and denies the public access to information about the operations of government to which it is entitled. Although Cole tries to bracket me with Attorney General Alberto Gonzales and Professor John Yoo, I term Yoo’s concept of presidential power (which I take it is Gonzales’s as well) “extravagant.” I also reject the metaphor of a “war” on terror, and criticize military tribunals and ethnic profiling.

The book’s objective is not to argue in favor of this or that counterterrorist measure, but to argue against an aggressive role for the courts in policing the boundary between national security and civil liberties in the name of the Constitution. Most judges know little about national security; the danger of catastrophic terrorism is real; and a constitutional decision forbidding a counterterrorist measure is almost impossible to change. It is better to leave these matters to be sorted out by the executive and legislative branches of government, where the relevant expertise resides. Cole thinks the Republican Congress was a rubber stamp for the administration’s national security measures, but, if so, this may be one reason why we now have a Democratic Congress.

Cole’s review does, however, raise an important question, which is whether judges can get away from “balancing” as the method for resolving constitutional disputes in which the stakes are great. Cole is correct that I reject the possibility of resolving such disputes by a distinctively legal methodology involving, in his words, “an effort, guided by text, precedent, and history, to identify the higher principles that guide us as a society”; “the judge’s attempt, informed by text, tradition, precedent, and reason, to identify and enforce those principles that rise above day-to-day cost-benefit analysis”; “we must insist on a Constitution of principle.” Lovely sentiments, but empty. One sees this in Cole’s call for a “return to established Fourth Amendment jurisprudence, which has long required that searches must generally be justified by a showing of objective, specific suspicion approved by a judge who is willing to issue a specific warrant.” So much for guidance by text, for the text of the Fourth Amendment does not require that searches be conducted pursuant to warrants. It places tight limits on warrants; the only limits it places on searches without warrants is that they not be “unreasonable.” Although Cole says that “the Constitution does not trust government officials to balance in some ad hoc fashion the value of the information they hope to obtain from suspects against the harms their tactics may inflict,” a standard of reasonableness is an invitation to do just that, and it is an invitation that the Supreme Court has accepted. Whether electronic surveillance without a warrant is constitutional will turn on whether five Supreme Court Justices think it’s “reasonable.”

David Cole must realize at some level that his ardent civil libertarian views are not the product of “text, tradition, precedent, and reason,” since equally capable legal thinkers hold opposite views. This is possible because there is no consensus on what methodology to use to resolve constitutional disputes and because text, tradition, precedent, and reason so often tug in different directions. As a result, his “higher principles” have no better constitutional pedigree than the “higher principles” that his conservative opponents purport to derive from the same Constitution. The text is very old and to a degree obsolete, tradition is a mixed bag (the Alien and Sedition Acts and Lincoln’s suspension of habeas corpus in the Civil War are part of the tradition), the precedents are mixed as well and many Cole rejects, and “reason” as lawyers use the term is in the eye of the beholder. Realism requires recognition that constitutional decision-making at the highest level (the US Supreme Court) in the most difficult cases is driven in the main by policy judgments based usually on just the kind of balancing that Cole deplores. Or pretends to deplore; for I imagine that au fond the reason he dislikes the administration’s counterterrorism measures is that he thinks they impose greater costs, in harm to civil liberties, than the benefits that they confer in reducing the risk of further terrorist attacks. The rest is rhetoric.

Richard A. Posner

Chicago, Illinois

David Cole replies:

It is regrettable that a federal judge feels the need to engage in ad hominem accusations of guilt by association rather than simply responding on the merits to a critical review of his book. It is true that I’ve received awards from the National Lawyers Guild and the American Muslim Council—and I’m proud of them. The awards were for human rights work, including my defense of Arabs and Muslims locked up or ordered deported on the basis of secret evidence that they had no opportunity to see or rebut—a practice federal judges uniformly found unconstitutional in the cases I litigated. For what it’s worth, I’ve also received similar honors from many other groups, including the American Bar Association’s Section on Individual Rights and Responsibility, the Thomas Jefferson Center for the Freedom of Expression, and the Society of American Law Teachers, but these associations apparently did not serve the judge’s rhetorical ends.

For the record, the American Muslim Council was not founded by Mr. al-Amoudi, and in fact the council fired Mr. al-Amoudi as its executive director in 2000, after he made statements supporting Hamas and Hezbollah. It was two years later that he was indicted, and four years later that he was convicted for illegal financial dealings with Libya, crimes attributable solely to him, not to the AMC, much less its awardees. Other AMC honorees have included Republican Congressman Dana Rohrbacher, not usually branded a liberal. FBI Director Robert Mueller gave the keynote address at the AMC’s annual convention in 2002, and defended his decision through a spokesperson by describing the group as the “most mainstream Muslim group” in the United States. Smearing Muslim groups has become an obsession for some on the right, but I expect more from Judge Posner.

Judge Posner suggests that my liberal views must have caused me to distort his book. But if anyone distorts his book, it is Judge Posner himself in his letter. He says, for example, that I failed to note that he criticizes military tribunals and ethnic profiling. Yet the principal feature of military tribunals that he laments is the fact that the judges are members of the military—not the fact that, under the rules in place when he wrote his book, defendants could be executed on secret evidence that they could not see or rebut, including evidence obtained through torture. As for ethnic profiling, far from criticizing it, Judge Posner’s book concludes that it is perfectly constitutional. And while he worries that profiling might alienate American Muslims, he says that’s not a problem with respect to foreign nationals, because “they are not expected to be loyal to the United States.”

Judge Posner claims that he does “not propose punishing the media for publishing classified material.” But in his book he argues that “as a constitutional matter, the government should be allowed to prevent or punish the knowing publication of classified material.” He does say that judges should ensure that material is properly classified, but offers no proposal for how they might actually do that highly contextual, intra-executive task, which judges have historically deemed beyond their expertise.

More generally, Judge Posner shies away from his own constitutional theory when he says that to declare a practice constitutional is not the same as saying that it is desirable as a policy matter. That is certainly true as a theoretical matter, at least where one’s constitutional theory is not reducible to one’s policy preferences. But as my review points out, Posner views questions of constitutionality as simply a matter of weighing all the costs and benefits, which is surely the same utilitarian calculus the policymaker would use to determine whether a practice is desirable. Under Posner’s approach, then, it’s hard to see why there would be any room between what is desirable and what is constitutional.

Judge Posner accuses me, in effect, of subscribing to the same constitutionalism-as-policy approach that he uses by asserting, without evidentiary support, that my constitutional views simply track my own policy preferences; “the rest is rhetoric.” But I believe that there is a critical distinction between constitutionalism and mere policy preferences. In fact, our Constitution gives judges the authority to declare acts of democratically elected officials unconstitutional on the understanding that they do not simply engage in the same cost-benefit analyses that politicians and economists undertake.

My own view is that the very sources Judge Posner dismisses—text, precedent, tradition, and reason—are absolutely essential to principled constitutional decision-making. Posner suggests that because none of these elements necessarily provides a determinate answer to difficult questions, we may as well abandon them for his seat-of-the-pants, cost-benefit approach. It is true that text, precedent, tradition, and reason do not determine results in some mechanistic way. That is why we ask judges, not machines, to decide constitutional cases. But these sources are nonetheless critically important constraints on and guides to constitutional decision-making. They are what identify those principles that have been deemed fundamental—and therefore constitutional—over our collective history. That there are differences over principle in no way excludes the need for reasoned argument about them.

There is a reason the framers of the Constitution did not simply say “the government may engage in any practice whose benefits outweigh its costs,” as Judge Posner would have it, but instead struggled to articulate a limited number of fundamental principles and enshrine them above the everyday pragmatic judgments of politicians. They foresaw what modern history has shown to be all too true—that while democracy is an important antidote to tyranny, it can also facilitate a particular kind of tyranny—the tyranny of the majority. Constitutional principles protect those who are likely to be the targets of such tyranny, such as terror suspects, religious and racial minorities, criminal defendants, enemy combatants, foreign nationals, and, especially in this day and age, Arabs and Muslims. Relegating such individuals to the mercy of the legislature—whether it be Republican or Democratic—denies that threat. The Constitution is about more than efficiency, and more than democracy; it is a collective commitment to the equal worth and dignity of all human beings. To call that mere “rhetoric” is to miss the very point of constitutional law.