Adventures in Posnerland | Bleader

Sunday, September 3, 2006

Adventures in Posnerland

Posted By on 09.03.06 at 07:42 AM

Glenn Greenwald listens to Chicago federal appellate judge Richard Posner's interview with Glenn and Helen Reynolds so we don't have to:

"Posner's core argument [in his new book Not a Suicide Pact: The Constitution in a Time of National Emergency] is that the threat of terrorism is so 'very great' and 'very novel'--'sui generis'--that the Constitution must be intepreted differently than it ever was before in order to deal with the threat (there is no transcript available--all quotes are from my listening to the podcast). Posner repeatedly claims in the interview that 'the Constitution is flexible' and he even says that it is a 'loose garment, not shrink wrap.' Thus, we 'have to interpret the Constitution in a way to enable us to cope with unanticipated dangers.'

"Posner's relentless characterization of the Constitution as this amorphous, evolving document which must be shaped and molded by political events led Reynolds to ask . . . isn't Posner advocating the very theory of a 'living, breathing Constitution' which conservatives have long claimed to despise, even consider tyrannical?

"Posner paused and stuttered quite a bit after being asked that question, and then admitted, quite astonishingly, that he 'hadn't thought about that' painfully obvious point before. But he then told Reynolds that he's 'right' about the fact that he, Posner, has an elastic view of the Constitution--that it is a 'flexible' document. Posner then justified that view by essentially denegrating the Constitution as obsolete and useless in light of this grave new threat. The Constitution is nothing but 'an 18th century document,' Posner complained, and 'the notion that [the Founders] had the answers to 20th century problems . . . is, I think, wrong and dangerous.' "

It looks like the prolific judge's garment of intellectuality may be working loose, too.

And conservatives who have cried out for years against "activist judges"--where are they now?

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