How Are the Constitution and Play-Doh Alike?

Governments have always found it a simple matter to override, suspend, or eliminate democracy by pointing to insidious and ubiquitous enemies who threaten the survival of the nation. It's the easiest way in the world for corrupt leaders to consolidate their power, really.

If governments could be trusted always to be selfless guardians of the people's best interests, we would not need constitutions or written guarantees of rights. Unfortunately, they cannot -- which is why this nation's founders felt it necessary to include a Bill of Rights in the Constitution they drafted. They did not write the Bill of Rights to protect Americans from shadowy, ill-defined, "invisible" enemies. They wrote the Bill of Rights to protect Americans from the people who governed them. They wrote the Bill of Rights to protect Americans from precisely the kind of malevolent leaders who cite "national security" and "enemies of freedom" as an excuse to take away freedom and make the nation less secure. There is no security or safety in a police state.

But tell that to Richard Posner, a federal judge who has just published a book called Not a Suicide Pact: The Constitution in a Time of National Emergency. Michiko Kakutani, reviewing the book for the New York Times, calls it "alarming":

The very language Judge Posner uses in this shrilly titled volume conveys his impatience with constitutional rights, while signaling his determination to deliver a polemical battle cry, not a work of carefully reasoned scholarship. He writes about lawyers' "rights fetishes," complains about judges' "thralldom to precedent" and 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."

Near the beginning of "Not a Suicide Pact" Judge Posner writes that "rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals."

He argues that "it would be odd if the framers of the Constitution had cared more about every provision of the Bill of Rights than about national and personal survival." And he concludes that "the importance of demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of repression that so often accompany our entry into war, including the war against Al Qaeda."

This willingness to bend the Constitution reflects Judge Posner's archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. It is a distinctly cynical outlook that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner has asserted that the media merely pander to the demands of their audiences rather than striving to inform the public, so he suggests in these pages that justices simply "make up constitutional law as they go along," following subjective criteria instead of striving to uphold principle and precedent.

In fact, Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience's sake. "The greater the potential value of the information sought to be elicited by an interrogation," he writes, "the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach."

Of course, even proponents of torture know full well that torture is not about getting "valuable information," no matter how "sought" such information may be -- because information gained through torture is unreliable by definition. Torture can never be about "fighting terror" or making anyone safer, because torture is terror. That is the entire purpose of torture: to terrorize, terrify, brutalize, and intimidate those who are tortured and those who fear they will be tortured.

Maybe Bush thinks authorizing torture "tough interrogation procedures" will make Americans forget that his administration has done nothing to fight terror, and everything to make terror worse. In truth, all it does is make the United States part of the terror.