In September, Oxford University Press published Not a Suicide Pact: The Constitution in a Time of National Emergency, written by Richard Posner, a judge on the US. Court of Appeals for the Seventh Circuit. Judge Posner's book, which explores how we might strike a balance between constitutionally protected liberties and security concerns arising from the threat of terrorism, is the first in a series on Inalienable Rights that will be published by Oxford University Press. In early October, Judge Posner discussed his book and recent developments in the law with "Looking at the Law" editor James Landman.
In Not a Suicide Pact, you point out that "the Constitution is much more than the Bill of Rights" (p. 43). If you were teaching a group of high school students about the Constitution, what concepts or clauses would you emphasize? What is essential that students understand about the Constitution?
The Bill of Rights--the series of 10 amendments added two years after the Constitution was drafted--is for many people the most interesting part of the Constitution. But there are two other central aspects of the document: One is the separation of powers, which created the three separate branches of the federal government--the Congress, the executive, and the judiciary. Students should understand that the Constitution established separate but overlapping powers that result in a system of government in which the branches check each other. This combination of divided and overlapping powers is the essence of the separation of powers--the Constitution's drafters intentionally created competitiveness and tension among the three branches. In recent years, we have seen this operating in struggles between the president and the Congress over the power to make war and defend the country. The president, on the one hand, is commander in chief of the armed forces. Congress, on the other hand, is responsible for financing and maintaining the armed forces and also for making the rules that govern them.
The second aspect is simply that the Constitution is very difficult to change, which creates a dilemma. On the one hand, we want the Constitution to be durable--we don't want everything to be up for grabs every time a new issue arises. On the other hand, there is the risk of rigidity. The solution we have come to is to make the Constitution difficult to amend, but to allow the courts to interpret constitutional provisions in a loose fashion. In other words, we combine the difficulty of making formal amendments with a tradition of flexible judicial interpretation without which an eighteenth-century document would be totally unusable in the twenty-first century.
You suggest that "activist" judges are those judges who do not give sufficient deference to the "social policy experiments" of the other two branches--acts of Congress, for example, or executive policies. Congress and the executive branch have initiated several "policy experiments" in response to the threat of terrorism (e.g., the USA PATRIOT Act, the NSA warrantless surveillance program, and the use of military commissions to try detainees at Guantanamo Bay). Has the judiciary been premature in its review of these experiments? At what point is it appropriate for the judiciary to intervene in a legislative or executive policy experiment?
Judicial activism and judicial self-restraint are tendencies that come right out of the separation of powers. The judiciary has the power to intervene in the actions of Congress and the executive branch; at the same time, the judiciary is subject to intervention by the other branches. The judiciary always has to consider how strongly to flex its muscles. If it does it too strongly, it encounters resistance from the other branches and, potentially, from the public. If it is too weak, it is not playing its proper role in the Constitution's structure.
Although there is no clear formula for defining the proper limits of the exercise of judicial power, one hopes that judges will at least be mindful of their limitations. …