Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian

Bernard E. Harcourt, Columbia Law School


How do you reconcile a civil liberties opinion like Edmond v. City of Indianapolis, 183 F.3d 659 (7th Cir. 1999) with the anti-civil libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006)? In Edmond, Judge Posner ruled in favor of a class of plaintiffs challenging the city of Indianapolis' practice of setting up road-blocks to catch drug offenders. The road-blocks had everything going for them. They distributed the costs of enforcement evenly across drivers, interfered minimally with their movement, and invaded only slightly their privacy. In addition, they were, apparently, successful: although only 1,161 vehicles were stopped, 5% of the stops resulted in successful searches for drugs and another 4% resulted in non-drug-related arrests – for an overall hit rate of almost 9%. Despite this, Judge Posner ruled against the road-blocks, resting heavily on the idea that the police did not have individualized suspicion – a legal fiction that makes little sense to anyone, especially economists or law and economics trained lawyers, who conceive of probable cause in probabilistic terms. In contrast, in Not a Suicide Pact, Richard Posner argues in defense of the use of coercive interrogation techniques up to and including torture; in support of the National Security Agency (NSA) program of warrantless electronic surveillance of American citizens; in favor of criminally punishing the dissemination (including by the media) of classified material concerning national security; and in defense of the constitutionality (though not yet the necessity) of prohibiting extremist speech. How do you reconcile these positions?

The answer is to be found in Judge Posner's unique brand of libertarianism. It is, first, pragmatic. As Judge Posner writes in Edmond, When urgent considerations of the public safety require compromise with the normal principles constraining law enforcement, the normal principles may have to bend. The Constitution is not a suicide pact. Staunch libertarians – on the Right and on the Left – might call pragmatic libertarianism an oxymoron and argue that civil liberties are only valuable in times of crisis. But the introduction of pragmatic concerns does not necessarily vitiate a libertarian perspective. The key question becomes: What flavor of pragmatism? The fact is, the pragmatic impulse can come in two very different flavors: one that still puts law enforcement measures to a serious test and another where the mere placement of the measure within the category of national emergency by necessary implication produces a foreseeable result. If that foreseeable result always favors law enforcement, I would label the approach, following Posner, authoritarian. This, then, is what makes Richard Posner a pragmatic libertarian, authoritarian-style. It is a position that combines, in a curious way, deep distrust of government intervention in economic matters, sincere belief in government incompetence, and trust that the government will not abuse or mismanage its augmented enforcement responsibilities during a time of national security emergency. In contrast to pragmatic libertarians on the Left, it is not skeptical of the government's ability to properly safeguard sensitive or personal information, to limit the use of excess force, or to avoid abusing these newfound powers.