The Constitution: A Debate

Oxford has launched a new Inalienable Rights series, which will explore fundamental questions about rights in each book. The first title, Not A Suicide Pact: The Constitution in a Time of National Emergency by Judge Richard A. Posner, argues that personal liberty must be balanced with public safety.
As Posner writes in his introduction, “constitutional law is fluid, protean, and responsive to the flux and pressure of contemporary events. The elasticity of constitutional law has decisive implications for the scope of constitutional rights during an emergency.”

In the below excerpt Professor Geoffrey Stone, editor of the Inalienable Rights series and Professor of Law at the University of Chicago, kicks off a debate with Judge Posner. To read more and to hear Posner’s response visit The American Constitution Society for Law and Policy.

Over the past year, Dick, we have had many opportunities, both public and private, to debate the nation’s response to the war on terrorism.

In simple terms, I consider myself a “civil libertarian,” whereas you describe yourself as a “pragmatist.” Not surprisingly, we disagree on many issues. I usually argue that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government has taken all other reasonable steps to keep us safe. You usually argue that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security “outweigh” the cost to society of limiting the rights. Despite our disagreements, we have increasingly found common ground. I think it will be useful to explore our similarities, rather than our differences, to see if we can agree on some recommendations.

To that end, I suggest we focus on the NSA’s surveillance of international phone calls and emails. In my view, the President instituted this program in clear violation of the 1978 Foreign Intelligence Act and in probable violation of the Fourth Amendment. You concede in Not a Suicide Pact that the the process by which the President instituted this program might well have violated FISA, but you insist that at least some version of the program would be good policy and can be upheld as “reasonable” under the Fourth Amendment.

At least in principle, I am open to your view….

To read the rest of Professor Stone’s arguement please visit the American Constitution Society for Law and Policy.