The Constitution in a Time of National Emergency: An Interview with Judge Richard Posner

By Landman, James | Social Education, November-December 2006 | Go to article overview

The Constitution in a Time of National Emergency: An Interview with Judge Richard Posner


Landman, James, Social Education


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Constitution in a Time of National Emergency: An Interview with Judge Richard Posner
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.