The Magazine

Freedom at War

Civil liberties in the age of terrorism.

Sep 18, 2006, Vol. 12, No. 01 • By PETER BERKOWITZ
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[I]n the early years of the twenty-first century, the nation faces the intertwined menaces of global terrorism and proliferation of weapons of mass destruction. A city can be destroyed by an atomic bomb the size of a melon, which if coated with lead would be undetectable. Large stretches of a city can be rendered uninhabitable, perhaps for decades, merely by the explosion of a conventional bomb that has been coated with radioactive material. Smallpox virus bioengineered to make it even more toxic and vaccines ineffectual, then aerosolized and sprayed in a major airport, might kill millions of people. Our terrorist enemies have the will to do such things and abundant opportunities, because our borders are porous both to enemies and to containers. They will soon have the means as well. The march of technology has increased the variety and lethality of weapons of mass destruction, especially the biological, and also and critically their accessibility. Aided by the disintegration of the Soviet Union and the acquisition of nuclear weapons by unstable nations (Pakistan and North Korea, soon to be joined, in all likelihood, by Iran), technological progress is making weapons of mass destruction ever more accessible both to terrorist groups (and even individuals) and to hostile nations that are not major powers. The problem of proliferation is more serious today than it was in what now seem the almost halcyon days of the Cold War; it will be even more serious tomorrow.

The danger is further defined by the jihadists' character, ideology, and tactics. We know that "they are numerous, fanatical, implacable, elusive, resourceful, resilient, utterly ruthless, seemingly fearless, apocalyptic in their aims, and eager to get their hands on weapons of mass destruction and use them against us." But because they do not represent a nation-state, and thus have neither territory nor population for which they are responsible, we do not know very much about "their current number, leaders, locations, resources, supporters, motivations, and plans; and in part because of our ignorance, we have no strategy for defeating them, only for fighting them."

The knowledge of concrete circumstances emphasized by pragmatists, Posner stresses, is critical when it comes to understanding the Constitution and the rights to which it gives rise. Constitutional rights, he argues, are not specified by the text of the Constitution, nor are they derivable from it by a single governing principle or a unique scientific or logical method. Rather, constitutional rights are created by justices interpreting the Constitution with a view to the moral and political consequences of their rulings.

Take the First Amendment. To be sure, it provides rights to freedom of speech, religion, press, and association. But it is the Supreme Court, over the centuries, that has determined the shape and scope of these rights, concluding, for example, that generally government may restrict speech on the basis of time, place, and manner, but not on the basis of content or viewpoint, and that the free exercise of religion is not wide enough to include prayer in school.

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 preponderance of good over bad effects."

Because the Supreme Court's legal conclusions about constitutional rights are, and ought to be, "heavily influenced by contemporary needs and conditions," they involve, in the final analysis, substantial policy judgments that result in the making of new law.