Berkowitz Reviews Posner Book for Weekly Standard
Professor Peter Berkowitz has reviewed Richard A. Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 208 pp.) in the September 18, 2006, edition of The Weekly Standard.
Freedom at War; Civil liberties in the age of terrorism, The Weekly Standard, September 18, 2006. By Peter Berkowitz.
"Posner's writings can give the disconcerting impression that sufficiently clever judges are free to reach whatever results they like. That is not his argument here. He recognizes that many legal controversies are resolved by straightforward application of the law. But in hard cases, where traditional legal materials--constitutional text, history, structure, and the holdings of previous cases--fail to yield a single lawful answer, justices ought to craft legal rules that serve the nation's moral and political requirements. Or rather, Posner believes that justices should do this more deliberately and forthrightly.
"In reality, he argues, in the difficult and divisive constitutional cases, the very ones to which the public pays the most attention and which appear to have the largest political implications, justices reach their decision in much the same way that ordinary citizens make nonlegal decisions, 'by balancing the anticipated consequences of alternative outcomes and picking the one that creates the greatest preponderence of good over bad effects.'"