Audio: Glenn Reynolds interviews God

posted at 12:34 pm on August 29, 2006 by Allahpundit

A.k.a. Richard Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, leading light of the law and economics movement, author of dozens of books on law, literature, and public affairs and umpteen dozen more articles on the same for law journals and legal periodicals, and all-around super-genius.

Here’s the cover of his latest book. What would Rick Ellensburg say?

posner.jpg

It’s hard to convey to non-lawyers how esteemed Posner is within the profession. It’s not overstating things to say he’s among the more influential thinkers in American legal history, although his libertarianism has led him to take certain, um, eccentric positions that make his elevation to the Supreme Court politically impossible. The point is, even if you’re not interested in civil liberties in the terrorist age, it’s worth listening just to expose yourself to a figure whose notoriety doesn’t nearly match his intellectual standing.

And yes, he has a blog.


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I read Posner’s blog for quite some time and ended up agreeing with Becker far more than with Posner. The biggest kick to the pants was when I read Posner’s blog after Hurricane Katrina, and Posner laid the blame for Katrina, at least in part, on GLOBAL WARMING. It turns out that Posner is a big believer in global warming, and he is in the Al Gore camp, believing that the danger from global warming is underestimated, not overestimated. That coming from Posner was a big let down for me, because it is simply not a reasonable position.

The other things I read from Posner that disappointed me had to do with race. Posner was far more willing to credit “race politics” arguments and give them weight than Becker, and this is in and of itself a problem because once you enter the debate conceding that “race matters” you pervert and distort the outcome/conclusions of that debate.

Becker is far more reliably conservative than Posner, and while Posner might have libertarian views, I don’t see global warming and race politics as something libertarians ideologically disagree with conservatives on.

I actually think Posner has been treated unfairly on the baby-selling matter. Like the blog entry AP linked, I agree with Posner on this subject, just as I agree with him on most subjects, which is what makes it all the more disappointing when I see things I don’t agree with him on.

kaltes on August 29, 2006 at 1:30 PM

Another great thing about Posner/Becker is that they post follow-up entries where they address comments made in response to their previous entry. It is fascinating that, if you had a good point in response to their position, they would discuss it in their follow-up. This makes their blog almost like a virtual classroom, the closest most of us could get to having one of them as a professor!

kaltes on August 29, 2006 at 1:33 PM

Allah, we know you like Posner almost as much KP, though in a manly way. Posner’s one of the smartest guys around, but he’s not a judicial conservative. In a former life I worked with a guy who did judicial selection in the Reagan Adminstration, not the top guy but fairly well placed, and he said, when I asked him how they put Posner on the court of appeals, “It wasn’t me! It was before my time!”

Attila (Pillage Idiot) on August 29, 2006 at 2:06 PM

Hm… Posner advocates a “flexible” Constitution that can be re-interpreted to mean whatever the security of the nation needs it to mean. So he’s a Judicial activist and Conservatives should be burning him at the stake. Right?

So why don’t you? Is it that Conservatives really have no problem with Judicial activism and the concept of the “living, breathing Constitution” ? Maybe they just want to be the ones whose mood dictates the principles of the country.

Perhaps the greatest accomplishment of Islamic terrorism is how it so quickly and completely shook Conservatives from their defining principles. 5 years ago, I wouldn’t have thought that I’d be seeing Conservatives encouraging the Executive Branch to break the law, praising judicial activists who twist the Constitution to match current fashions, cries for big government solutions and the willful deprecation of privacy rights.

What’s left for Conservatives? If you could stop a terrorist attack by aborting 1000 babies, would you do it? How many core Conservative principles have to be cast aside in order to sufficiently combat terrorism?

Mark Jaquith on August 29, 2006 at 7:36 PM

Way to keep a perspective, Mark. Heh.

Allahpundit on August 29, 2006 at 7:40 PM

Mark Jaquith: The U.S. Constitution cannot be trusted if the Founders were unable to say exactly what they meant and mean exactly what they said. It is a living document only to the extent it is amended in strict accordance with the Amendment Process.

“Article Five describes the process necessary to amend the Constitution. It establishes two methods of proposing amendments: by Congress or by a national convention requested by the states. Under the first method, Congress can propose an amendment by a two-thirds vote (of a quorum, not necessarily of the entire body) of the Senate and of the House of Representatives. Under the second method, two-thirds of the state legislatures may convene and “apply” to Congress to hold a national convention, whereupon Congress must call such a convention for the purpose of considering amendments. As of mid-2006, only the first method (proposal by Congress) has been used. Once proposed—whether submitted by a national convention or by Congress—amendments must then be ratified by three-fourths of the states to take effect.”

If and when the Congress, as in the case of the McCain/Feingold legislation which abridged our free political speech rights via the legislative process; or the Supreme Court by various legal gymnastics, changes the Constitution to mean anything other than what the Constitution clearly states, then those efforts are extra-Constitutional and thereby unconstitutional in nature.

The United States Congress did not encourage or in any way permit the Executive Branch to ‘break the Law,’ in any of the intelligence surveillance programs or to violate the privacy rights of our citizens. Further, according to the Constitution there are three separate and equal branches of government wherein no one branch may dictate the actions of another; the President took an oath to the Constitution and inherent therein is his/her equal right along with the Congress of SCOTUS, by consultation with the Justice Department to interpret the Constitution; and lastly under the War Powers act, only twice in our history has the Supreme Court seen fit to even comment on the limitations of the President to conduct a war. They did this once with Truman and once with G.W. Bush, wherein the liberal wing of the Court, with the Chief Justice not participating, saw fit to deny the Executive Branch, for the first time in our history the right to use military tribunals for non-uniformed enemy combatants. The SCOTUS did not interfere with Lincoln’s suspension of habeas corpus or FDR’s imprisonment of Japanese Americans; but they recently saw fit to interfere with the War Powers Act solely because they hate President Bush personally, not for any constitutionally sound reason.

Posner, a Bush hating extreme left wing liberal may want a flexible Constitution, but only if liberal justices are making those decisions, of that I assure you; and such a flexible Constitution easily amended by the Congress or the Court is unconstitutional. So, for Posner to legally get his way, it would require 2/3 of the states to ratify an amendment to the Constitution to make such a doctrine constitutional!

While this may not please your liberal emotions, it is nonetheless the form of government handed down to us by the Founding fathers.

Umnumzana on August 29, 2006 at 8:10 PM

the President took an oath to the Constitution and inherent therein is his/her equal right along with the Congress of SCOTUS, by consultation with the Justice Department to interpret the Constitution

He’s interpreted it to say that he has the right to break the law. The Supreme Court has already ruled on that… like you said, with Truman.

The SCOTUS did not interfere with Lincoln’s suspension of habeas corpus or FDR’s imprisonment of Japanese Americans

Lincoln’s suspension of habeas corpus was ruled illegal. I’m not very familiar with FDR’s Japanese-American imprisonment program (shh, don’t tell the boss), so I can’t comment there.

they recently saw fit to interfere with the War Powers Act solely because they hate President Bush personally, not for any constitutionally sound reason.

That’s your opinion. The President cannot break the law, even with War Powers.

While this may not please your liberal emotions, it is nonetheless the form of government handed down to us by the Founding fathers.

Are you talking to me? I ain’t no liberal, at least in the modern sense of the word. I’m with you all the way on the Constitution being immutable without actual amendment.

Mark Jaquith on August 29, 2006 at 9:11 PM

Mark Jaquith: If you are not a liberal, I accept your word on the mattter. Your agreement with Posner caused me to suspect otherwise; but I guess that at times we all can appear more sympathetic to the beliefs of the other side of the political spectrum without losing our basic political beliefs in the process.

When did President Bush break the Law?

When was he convicted of breaking the Law?

An accusation is not proof!

Further, when the President sought the counsel of the Justice Department and their Constitutional experts; and outside Constitutional scholars, at best there exists a reasonable disagreement about the limits of his War Powers. However, to be found guilty of breaking the law he would have to have made an arbitrary decision, or did something wholly contrary to Justice Department’s opinions and other legal advice. If the President seeks and gets such legal advice, then when he acts on that advice, how can that possibly be construed as breaking the law? Granted at some point in the process a combination of Judicial decisions and/or legislation of Congress may set more strict parameters for executive actions; but even then, if the President, a Constitutional Officer, with advice of the Justice Department disagrees, surely he/she has the right to ignore both the Judicial and Legislative branches, wherein the Constitutional corrective is with the voters.

Must the President get the prior agreement of the SCOTUS and/or the opposing party in Congress before he makes any decisions in time of war? If so, then there are no longer three separate but equal branches of government, in such a scenario the SCOTUS and/or the Congress would be the superior branch(s) and the Executive Branch the lower, inferior, subservient branch. Is that what separate but equal means? That is, that the Executive Branch is subservient to the other two branches? Lastly to this point, if that is true, then no President can ever again prosecute any war approved by Congress, because war does not allow time for consultation with 9 Justices and 535 legislators! Not that you could ever get that many people to agree on anything with enough clarity to allow the President to take any action to defend this country.

There is a natural, designed tension between the three branches of government that our Founding Father’s, by reliance upon God’s Wisdom, placed in our Constitution. The three branches always have, are now and always will try and wrest absolute power from the other two; but the danger to our Representative Republic and separation of powers is when any one branch succeeds in making one or both of the other branches submit to their authority by threats of impeachment or demands for subservience. The balance of power swings back and forth and has always served us quite well, but we must demand that all three branches be wholly subservient to the will of the people, within the limits and requirements of the Constitution; and insist that no one branch is to be subservient to the other two branches.

Bush may have exceed the defintions of his War Powers according to some or even most Americans; but his actions have legal cover and only the electorate should decide if he did or not, through their votes.

Umnumzana on August 29, 2006 at 9:43 PM

Lacking the legal knowledge of some, and the intellectual depth of others, I can only fall back upon the words of Abraham Lincoln in the article Mark linked to…

“Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

EFG on August 30, 2006 at 1:01 AM

If you are not a liberal, I accept your word on the mattter. Your agreement with Posner caused me to suspect otherwise

Where’d I agree with Posner?! I was merely exposing his views on Constitutional flexibility and noting that they are the same sort of judicial activism Conservatives have been complaining about for years.

When did President Bush break the Law?

When he ordered that the NSA begin tapping phones without a warrant (before or after the fact, as allowed by FISA). The administration admits outright that such an order is a violation of the law.

Our position is that we are not legally required to do, in this particular case, because the law requires that we — FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.

Alberto Gonzales, White House Press Briefing

Belief in something does not make it so. No statute was passed authorizing the President to bypass FISA. The President has surrounded himself with people who work with the Justice Department to construct a rickety façade so that he has someone to point to when someone peeks behind the curtain, but it doesn’t take a lawyer to see that Congress didn’t authorize him to ignore FISA.

Granted at some point in the process a combination of Judicial decisions and/or legislation of Congress may set more strict parameters for executive actions; but even then, if the President, a Constitutional Officer, with advice of the Justice Department disagrees, surely he/she has the right to ignore both the Judicial and Legislative branches, wherein the Constitutional corrective is with the voters.

There are parameters for executive actions: the President isn’t allowed to make law… he only gets to advise and veto. He is also subject to the law himself. The corrective isn’t “wait until 2008,” the corrective is either (a) a court decision on the legality of his actions (which has happened) or (b) Congress clarifying that they didn’t authorize the President to violate FISA (which is in progress).

The rest of your comment is well taken, but it doesn’t get around the fact that the President isn’t allowed to ignore a law passed by Congress. That was a designed limitation of Executive Branch power. If Congress makes a law (like FISA), it is not an attack on the Executive Branch to expect that the law be followed and it is similarly not an attack on the Executive Branch for a court to rule that the law is being violated. The branches of government have roles, and in this matter it is only the Executive Branch that has stepped out of line.

EFG,

“Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Lincoln faced a giant fracturing of the Union of states. That Union wasn’t merely threatened… it had been dissolved.

Terrorism does not and cannot pose a threat of that magnitude to this country. Terrorists don’t have the numbers or the capability of making our government “go to pieces.” Terrorism attacks our safety, and through our reactions and overreactions, our way of life — but the country isn’t in danger of falling into ruin. Get back to me when China invades the U.S. and my position will likely have changed.

Mark Jaquith on August 31, 2006 at 1:43 AM