Notes/Explanation

This is an advantage that can be read by an affirmative that curtails any (arguably) unconstitutional
surveillance practice. Additional links or internal links (X program is unconstitutional) will be found in
the relevant affirmative files.

1AC

1AC Contractualism Version

First, mass surveillance is unconstitutional because it violates
the Fourth Amendment. The Freedom Act was a net-negative
because it extended unconstitutional programs.
Marthews 14 Alex Marthews, National Chair at Restore The Fourtha 501(c)(4) nonprofit that
seeks to strengthen the Fourth Amendment to the United States Constitution and end programs that
violate it, holds a Masters in Public Policy from the University of California-Berkeley and a B.A. in English
from the University of Cambridge, 2014 (We Need Real Surveillance Reform, Not The House's USA
Freedom Act, Restore The Fourth, May 27th, Available Online at http://restorethe4th.com/blog/we-needreal-surveillance-reform-not-the-houses-usa-freedom-act/, Accessed 06-19-2015)

The USA Freedom Act, 303 votes

to 121. Following a series of amendments, the bill as it passed in the end contained much
weaker reforms than even the very modest ones it originally
proposed. The Chair of the Judiciary Committee's manager's amendment
removed two-thirds of its substantive reforms; the Chair of the
Intelligence Committee and the White House worked hard to remove as
much as possible of what remained, leaving a shell that will still
permit mass surveillance.
Last week, the House of Representatives passed the bill called

The Fourth Amendment is clear: Mass surveillance is

unconstitutional. A government search is unreasonable, and
therefore unconstitutional, if it is not authorized beforehand by a
warrant issued by a judge, on the basis of "probable cause" of
involvement in an actual crime, supported by an "oath or affirmation,
and particularly describing" the "persons or things to be seized."
That's what ought to happen. This bill, on the other hand, would allow
government searches of millions of innocent people's data and
movements, not based on probable cause or even reasonable
suspicion of their personal involvement in a crime, but simply on any
"selection term" vaguely associated with a target of
surveillance.
The "selection term" could be as broad as the government likes,
covering, for example, everyone born in Hawaii, or everyone with the
middle name Hussein. The argument for this reform that supporters are
touting is that this is better than the current government practice of
collecting everything with no selection term at all. While that's true, it
misses the larger point. The standard is individualized probable
cause warrants, not whatever is most convenient for the NSA.

A standard that can be redefined at will is marginally if at all

better than having none.
As a terrible coda, the bill's last section extends out the sunset of crucial
parts of the abusive PATRIOT Act from 2015 all the way through till 2017.
Apparently, fourteen years of "emergency" privacy-violating legislation
is still not enough to defeat the people who attacked us on 9/11, and
we need sixteen. Given this extension, were this bill as it currently exists to be
signed into law, it would be a net negative for the Fourth Amendment .
The only merit in the bill having passed is that it provides something with which the Senate's superior
version of the USA Freedom Act can be reconciled in conference. We urge the Senate, and especially the
Judiciary Committee, to fight hard for the Fourth Amendment in the next few months by advancing as
strong a bill as possible much stronger than this one. The USA Freedom Act, in its original form, was
popular enough in the House to have passed unamended, had it been allowed to come to the floor. In the
Senate, the same may well be true, and our next steps on Capitol Hill will be to work to make that happen.

When we look back in a generation at the era of our out-of-control

surveillance state, we will wonder why we didn't take the Fourth
Amendment as seriously as our Founders took it. We will feel
shame that we were willing to sell our Bill of Rights in an attempt to
thwart the same terrorists said to be attacking it. The sooner we
replace this act with actual reform, the sooner our out-of-control
surveillance state will finally be a thing to look back on.

Second, constitutional safeguards against warrantless

surveillance must be maintained regardless of consequences.
Weighing privacy against security nullifies the Fourth
Amendment.
Cole 6 David Cole, Professor at Georgetown University Law Center, has litigated many significant
constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (How to Skip the
Constitution, New York Review of Books, November 16th, Available Online at
http://www.nybooks.com/articles/archives/2006/nov/16/how-to-skip-the-constitution/, Accessed 06-282015)
Judge Posner is not troubled by any of these measures, at least as a constitutional matter. His theory of the
Constitution is at once candid and cavalier. Rejecting popular conservative attacks on judicial activism,
he argues that in view of the open-ended character of many of the documents most important terms
reasonable searches and seizures, due process of law, equal protection, and even liberty itself
it is not objectionable but inevitable that constitutional law is made by judges. He dismisses the
constitutional theories of textualism and originalism favored by many conservative judges and scholars as
canards, arguing that neither the Constitutions text nor the history of its framing gives much guidance in
dealing with most of the hard questions of the day. Constitutional law, he maintains, is intended to be a
loose garment; if it binds too tightly, it will not be adaptable to changing circumstances.

Posner then goes on to treat the Constitution as essentially a license to

open-ended balancing of interests by the political branches and
But

the courts. His thinking is informed largely by an economists predilection for cost-benefit analysis
and a philosophical enthusiasm for pragmatism. Posners reputation as a scholar rests not on his
contributions to constitutional theory, but on his role as one of the founding fathers of the movement that
applied economic analysis to law. His new book might just as well have been called An Economist Looks at

constitutional interpretation for Posner is little more

than a balancing act, and when the costs of a catastrophic terrorist
attack are placed on the scale, he almost always feels they outweigh
concerns about individual rights and liberties.
the Constitution. In the end,

Consider, for example, his views on electronic surveillance. The Bush administration
currently faces several dozen lawsuits challenging various aspects of its NSA spying program, which,
according to the administration, involves the warrantless wiretapping of international phone calls and emails where one of the participants is thought to be connected with al-Qaeda or affiliated groups. That
program, as I and many other constitutional scholars have argued, violates a provision in the Foreign
Intelligence Surveillance Act (FISA) specifying that it is a crime for officials not to seek a warrant from the
appropriate court before engaging in such wiretapping.1 The Bush administration seeks to justify this
violation of law by invoking an inherent presidential power to ignore congressional legislation, echoing
President Richard Nixons defense of his own decision to authorize warrantless wiretapping during the

Posner not only sees

nothing wrong with the NSA program; he would also find constitutional a far
more sweeping measure that subjected every phone call and e-mail in
the nation, domestic as well as international, to initial computer
screening for patterns of suspicious words, and then permitted
intelligence agents to follow up on all communications that the
computer treated as suspicious.
Vietnam War: When the president does it, that means that it is not illegal.

How does Posner reach the conclusion that the Constitution would
permit such an Orwellian scheme, far more invasive than the Bush administration, if it is
to be believed, has been willing to undertake so far? In a word, balancing. In Posners
view, the costs to personal liberty of such a program are minimal, and
are outweighed by the benefits to our security. Having a computer analyze ones
phone calls is no big deal, he claims, as long as we know its only looking for terrorists. He admits
that there might be a danger of misuse of the information by the
agents who follow up on the computers suspects, but he considers
that risk minimal because he is confident that any such abuse would
likely come to light and be widely criticized. (He fails to acknowledge that
whistleblowing would be far less likely if he had his way and an Official Secrets Act were passed making it

As for the benefits of such surveillance,

Posner surmises that such a program might sweep up sufficient data to
permit intelligence agents to connect the dots and prevent a
catastrophic attack. Even if it didnt, he writes, it would at least have
the salutary effect of discouraging terrorists from communicating by
telephone and e-mail.
a crime to publish leaked government secrets.)

Every aspect of Posners analysis is open to question. He

ignores that privacy is essential to political freedom: if everyone
knows that their every electronic communication is subject to
government monitoring, even by a computer, it would likely have a
substantial chilling effect on communications that the government
might conceivably find objectionable, not just terrorist planning, and
not just criminal conduct. Moreover, Posner ignores the myriad ways in
which the government can harass people without its ill intent ever
coming to light. For example, the government can selectively
prosecute minor infractions of the law, launch arbitrary tax
investigations, and engage in blackmail, all methods perfected by
FBI Director J. Edgar Hoover. Contrary to Posners claims, one cannot, as the FBIs
abuses showed, trust public scrutiny to forestall such tactics, even in the absence of
an Official Secrets Act. Finally, it is far from clear that such a program would be
effectivethe sheer volume of dots generated would make
connecting them virtually impossible. In any case, computer programs
would be relatively easy to evade through the use of code words.
The real answer to Posners notion of balance, however, is not to show that
a different balance can be struck, but to return to established Fourth
Amendment jurisprudence, which has long required that searches
must generally be justified by a showing of objective, specific
suspicion approved by a judge who is willing to issue a specific
warrant. The requirements that a warrant be issued and that it be
based on probable cause are designed to protect privacy unless
there are fairly strong grounds for official intrusion. The principal evil
that the Fourth Amendment was drafted to avoid was the general
warrant, which permitted government officials to search anyones
home, without suspicion of specific individuals. Posners program is
nothing less than a twenty-first-century version of exactly what
the Fourth Amendment was designed to forbid . Through an openended and inevitably subjective balancing of privacy and security, he
has managed to turn the Fourth Amendment on its head.

Third, constitutional privacy protections are the foundation of

freedom. Mass surveillance is inherently repressive because it
exposes individuals to inescapable, oppressive scrutiny.
Greenwald 14 Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public
Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept,

former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent
Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of
Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award
for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for
Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundations Pioneer Award,
holds a J.D. from New York University School of Law, 2014 (The Harm of Surveillance, No Place To Hide:
Edward Snowden, the NSA, and the U.S. Surveillance State, Published by Metropolitan Books, ISBN
9781627790734, p. 173-174)

Privacy is essential to human freedom and happiness for reasons

that are rarely discussed but instinctively understood by most people, as evidenced by the
lengths to which they go to protect their own. To begin with, people radically change their
behavior when they know they are being watched. They will strive to
do that which is expected of them. They want to avoid shame and
condemnation. They do so by adhering tightly to accepted social
practices, by staying within imposed boundaries, avoiding action that
might be seen as deviant or abnormal.
The range of choices people consider when they believe that others
are watching is therefore far more limited than what they might do
when acting in a private realm. A denial of privacy operates to
severely restrict ones freedom of choice.
Several years ago, I attended the bat mitzvah of my best friends daughter. During the ceremony, the rabbi
emphasized that the central lesson for the girl to learn was that she was always being watched and
judged. He told her that God always knew what she was doing, every choice, every action, and even
every thought, no matter how private. You are never alone, he said, which meant that she should always
adhere to Gods will.

if you can never evade the watchful eyes of a

supreme authority, there is no choice but to follow the dictates that
authority imposes. You cannot even consider forging your own path
beyond those rules: if you believe you are always being watched and
judged, you are not really a free individual.
The rabbis point was clear:

All oppressive authorities political, religious, societal, parental rely on this vital
truth, using it as a principal tool to enforce orthodoxies, compel
adherence, and quash dissent. It is in their interest to convey that
nothing their subjects do will escape the knowledge of the authorities.
Far more effectively than a police force, the deprivation of privacy
will crush any temptation to deviate from rules and norms.
What is lost when the private realm is abolished are many of the [end
page 173] attributes typically associated with quality of life. Most people
have experienced how privacy enables liberation from constraint. And
weve all, conversely, had the experience of engaging in private behavior

when we thought we were alone dancing, confessing, exploring sexual expression,

sharing untested ideas only to feel shame at having been seen by others.
Only when we believe that nobody else is watching us do we feel free
safe to truly experiment, to test boundaries, to explore new ways
of thinking and being, to explore what it means to be ourselves. What
made the Internet so appealing was precisely that it afforded the ability to speak and act anonymously,
which is so vital to individual exploration.

it is in the realm of privacy where creativity, dissent, and

challenges to orthodoxy germinate. A society in which everyone
knows they can be watched by the state where the private realm is
effectively eliminated is one in which those attributes are lost, at
both the societal and the individual level.
For that reason,

Mass surveillance by the state is therefore inherently repressive,

even in the unlikely case that it is not abused by vindictive officials to do
things like gain private information about political opponents. Regardless of how
surveillance is used or abused, the limits it imposes on freedom are
intrinsic to its existence.

Finally, constitutional rights like privacy cant be

outweighed on the basis of cost-benefit analysis. This is
especially important in the context of terrorism.
Cole 7 David Cole, Professor at Georgetown University Law Center, has litigated many significant
constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (Book Review: The
Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11 (Review of Richard A. Posners Not A
Suicide Pact: The Constitution In A Time Of National Emergency), Stanford Law Review (59 Stan. L. Rev.
1735), April, Available Online to Subscribing Institutions via Lexis-Nexis)
II. The Disappearing Constitution

the
Constitution - namely, that it is a form of collective precommitment. The
genius behind the Constitution is precisely the recognition that
"pragmatic" cost-benefit decisions of the type Posner favors will often appear in
the short term to favor actions that in the long term are contrary to
our own best principles. Just as we may be tempted to smoke a
cigarette tonight [*1746] even though in the long term we are likely to
suffer as a result, so we know collectively that in the short term we are
likely to empower government to suppress unpopular speech, invade
the privacy of "dangerous" minorities, and abuse suspected criminals,
even though in the long term such actions undermine the values of
The general problem with Posner's approach is that it does away with the animating idea of

free speech, equality, and privacy that are necessary to democracy

and human flourishing. If we were always capable of rationally
assessing the costs and benefits in such a way as to maximize our
collective well-being, short-term and long-term, we might not need a
Constitution. But knowing that societies, like individuals, will be tempted to
act in ways that undermine their own best interests, we have
precommitted to a set of constitutional constraints on pragmatic
balancing. Posner's view that the Constitution must bend to the point
of authorizing virtually any initiative that seems pragmatic to him reduces
the Constitution to a precommitment to balance costs and benefits,
and that is no precommitment at all.
Constitutional theory demands more than ad hoc balancing. n27 While the
nature of competing interests means that at some level of generality, a balance must be struck,

constitutional analysis is not an invitation to the freewheeling, allthings-considered balance of the economist. Instead, it requires an
effort, guided by text, precedent, and history, to identify the higher principles that
guide us as a society, principles so important that they trump
democracy itself (not to mention efficiency). The judge's constitutional duty was perhaps best
captured by Justice John Marshall Harlan, writing about the due process clause:
Due process has not been reduced to any formula; its content cannot be determined by reference
to any code. The best that can be said is that through the course of this Court's decisions it has
represented the balance which our Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands of organized society. If the supplying
of content to this Constitutional concept has of necessity been a rational process, it certainly has
not been one where judges have felt free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this country, having regard to what history
teaches are the traditions from which it developed as well as the traditions from which it broke.
That tradition is a living thing. A decision of this Court which radically departs from it could not
long survive, while a decision which builds on what has survived is likely to be sound. No formula
could serve as a substitute, in this area, for judgment and restraint. n28
Instead of looking to the Constitution and its jurisprudence as a reflection of our collective effort to
determine the higher principles that should guide us, as Harlan suggests, Posner would start from scratch,
assessing what is best from a pragmatic, open-ended balancing approach that he admits ultimately
involves weighing imponderables.
[*1747] Posner insists that to declare a practice constitutional is not the same as saying that it is
desirable as a policy matter: "Much that the government is permitted by the Constitution to do it should
not do and can be forbidden to do by legislation or treaties" (p. 7). That is certainly true as a theoretical
matter, at least where one's constitutional theory is not reducible to one's policy preferences. But Posner
appears to view questions of constitutionality as simply a matter of weighing all the costs and benefits,
which is surely the same utilitarian calculus the policymaker would use to determine whether a practice is
desirable. Under Posner's approach, then, it is difficult to see why there would be any room between what
is desirable and what is constitutional.

If constitutionalism is to have any bite, it must be distinct from mere

policy preferences. In fact, our Constitution gives judges the authority to declare acts of
democratically elected officials unconstitutional on the understanding that they will not simply engage in
the same cost-benefit analyses that politicians and economists undertake. The very sources Judge Posner

dismisses - text, precedent, tradition, and reason - as unhelpful in the face of the threat of catastrophic
terrorism are absolutely essential to principled constitutional decision-making. It is true that text,
precedent, tradition, and reason do not determine results in some mechanistic way. That is why we ask
judges, not machines, to decide constitutional cases. But these sources are nonetheless critically important
constraints on and guides to constitutional decision-making. They are what identify those principles that
have been deemed fundamental - and therefore constitutional - over our collective history.

The Framers of the Constitution did not simply say "the government
may engage in any practice whose benefits outweigh its costs," as
Judge Posner would have it. Instead, they struggled to articulate a limited
number of fundamental principles and enshrine them above the
everyday pragmatic judgments of politicians. They foresaw what
modern history has shown to be all too true - that while democracy is an
important antidote to tyranny, it can also facilitate a particular kind of
tyranny - the tyranny of the majority. Constitutional principles protect
those who are likely to be the targets of such tyranny, such as terror
suspects, religious and racial minorities, criminal defendants, enemy
combatants, foreign nationals, and, especially in this day and age, Arabs
and Muslims. Relegating such individuals to the mercy of the
legislature denies the existence of that threat. The Constitution is
about more than efficiency and more than democracy; it is a
collective commitment to the equal worth and dignity of all
human beings. To fail to see that is to miss the very point of
constitutional law.
Posner's trump card is that because terrorism in the twenty-first century poses
the risk of truly catastrophic harm, it renders constitutional precedent
and history largely irrelevant. Everything has changed. We are in a new paradigm,
in which, as Alberto Gonzales said of the Geneva Conventions, the old rules (apparently including even

But each new

generation faces unforeseen challenges. The advent of modern
weaponry changed war as we knew it. Communism backed by the
Soviet Union posed a "new" threat of totalitarian takeover. The
development of the nuclear bomb ushered in yet another new era. This
is not to deny that there is a real threat that terrorists may get their hands on weapons
of mass destruction, and that this threat must be taken very seriously. But it is
to insist on what is a truly conservative point - that principles developed and applied
over two centuries still have something important to say in guiding us
as we address the threat of modern terrorism.
those enshrined in the Constitution) are now [*1748] "quaint" or "obsolete." n29

The corollary to Posner's pragmatic and utilitarian balancing approach to the Constitution is that judges
should defer to the political branches on national security questions. Judges have no special expertise in

Decisions invalidating
security measures as unconstitutional reduce our flexibility, for they are
national security, he argues, while the political branches do (p. 9).

extremely difficult to change through the political process, and may cut off avenues of experimentation (p.

But the Constitution was meant to cut off certain avenues. Trying
suspected terrorists without a jury, locking them up without access to a
judge, convicting them without proving guilt beyond a reasonable
doubt, searching them without probable cause or a warrant, and
subjecting them to torture all might make terrorists' tasks more difficult
27).

(although, as I have argued elsewhere, many of these shortcuts actually help the terrorists and make us

But while the Constitution

may not be a "suicide pact," neither is it a license to do anything
our leaders think might improve our safety.
more vulnerable, because of the backlash they provoke). n30

New Affirmative Backlines

They Say: Posner Balancing Good

The Constitution enshrines fundamental principles as side
constraints that guide cost-benefit policy analysis. Its not just
a question of balancing Posner is wrong.
Cole 7 David Cole, Professor at Georgetown University Law Center, has litigated many significant
constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (How to Skip the
Constitution: An Exchange, New York Review of Books, January 11th, Available Online at
http://www.nybooks.com/articles/archives/2007/jan/11/how-to-skip-the-constitution-an-exchange/,
Accessed 06-28-2015)
More generally, Judge Posner shies away from his own constitutional theory when he says that to declare a
practice constitutional is not the same as saying that it is desirable as a policy matter. That is certainly true
as a theoretical matter, at least where ones constitutional theory is not reducible to ones policy

Posner views questions of constitutionality

as simply a matter of weighing all the costs and benefits, which is surely
the same utilitarian calculus the policymaker would use to determine
whether a practice is desirable. Under Posners approach, then, its hard
to see why there would be any room between what is desirable and
what is constitutional.
preferences. But as my review points out,

Posner accuses me, in effect, of subscribing to the same

constitutionalism-as-policy approach that he uses by asserting, without
evidentiary support, that my constitutional views simply track my own
policy preferences; the rest is rhetoric. But I believe that there is a critical
distinction between constitutionalism and mere policy preferences.
In fact, our Constitution gives judges the authority to declare acts of
democratically elected officials unconstitutional on the understanding
that they do not simply engage in the same cost-benefit analyses that
politicians and economists undertake.
Judge

the very sources Judge Posner dismissestext, precedent,

tradition, and reasonare absolutely essential to principled
constitutional decision-making. Posner suggests that because none of
these elements necessarily provides a determinate answer to difficult
questions, we may as well abandon them for his seat-of-the-pants,
cost-benefit approach. It is true that text, precedent, tradition, and
reason do not determine results in some mechanistic way. That is why
we ask judges, not machines, to decide constitutional cases. But these
sources are nonetheless critically important constraints on and
guides to constitutional decision-making. They are what identify those
principles that have been deemed fundamentaland therefore
My own view is that

constitutionalover our collective history. That there are differences

over principle in no way excludes the need for reasoned argument
about them.
There is a reason the framers of the Constitution did not simply say
the government may engage in any practice whose benefits outweigh
its costs, as Judge Posner would have it, but instead struggled to
articulate a limited number of fundamental principles and enshrine
them above the everyday pragmatic judgments of politicians.
They foresaw what modern history has shown to be all too truethat
while democracy is an important antidote to tyranny, it can also
facilitate a particular kind of tyrannythe tyranny of the majority.
Constitutional principles protect those who are likely to be the targets
of such tyranny, such as terror suspects, religious and racial
minorities, criminal defendants, enemy combatants, foreign
nationals, and, especially in this day and age, Arabs and Muslims.
Relegating such individuals to the mercy of the legislaturewhether it be
Republican or Democraticdenies that threat. The Constitution is about more
than efficiency, and more than democracy; it is a collective
commitment to the equal worth and dignity of all human beings.
To call that mere rhetoric is to miss the very point of
constitutional law.

Posners arguments are bad scholarship.

Kakutani 6 Michiko Kakutani, Pulitzer Prize-winning critic for the New York Times, holds a B.A. in
English from Yale University, 2006 (A Jurists Argument for Bending the Constitution, New York Times,
September 19th, Available Online at http://www.nytimes.com/2006/09/19/books/19kaku.html, Accessed 0628-2015)

The Bush administrations assertion that the war on terror is a new

kind of war requiring new rules and a new equation between liberty
and security is vehemently echoed by Richard A. Posners alarming new book, Not a
Suicide Pact: The Constitution in a Time of National Emergency.
In addition to being a judge on the United States Court of Appeals for the Seventh Circuit, Judge Posner is a
prolific author, a lecturer at the University of Chicago Law School and an intellectual leader of a school of
jurisprudence that has pioneered the use of economics to analyze legal issues. He is known for his willfully
provocative opinions he once co-wrote an article recommending the private sales of babies and the
positions he takes in this volume will not only fuel his own controversial reputation but also underscore just
how negotiable constitutional rights have become in the eyes of administration proponents, who argue
that the dangers of terrorism trump civil liberties.

The very language Judge Posner uses in this shrilly titled volume conveys his
impatience with constitutional rights, while signaling his determination

to deliver a polemical battle cry, not a work of carefully reasoned

scholarship. He writes about lawyers rights fetishes, complains about judges thralldom to
precedent and declares that the absence of an Official Secrets Act which could be used to punish
journalists for publishing leaked classified material reflects a national culture of nosiness, and of
distrust of government bordering on paranoia.
Near the beginning of Not a Suicide Pact Judge Posner writes that rooting out an invisible enemy in our
midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and
for eras in which the only serious internal threat (apart from spies) came from common criminals.
He argues that it would be odd if the framers of the Constitution had cared more about every provision of
the Bill of Rights than about national and personal survival. And he concludes that the importance of
demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of
repression that so often accompany our entry into war, including the war against Al Qaeda.

willingness to bend the Constitution reflects Judge Posners archly

pragmatic approach to the law and his penchant for eschewing larger
principles in favor of utilitarian, cost-benefit analysis. Efficiency, market
dynamics and short-term consequences are what concern Judge Posner,
not enduring values or legal precedents.
This

One result is a depressing relativism in which there are no higher

ideals and no absolute rights worth protecting. It is a distinctly cynical outlook
that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner
has asserted that the media merely pander to the demands of their audiences rather than striving to
inform the public, so he suggests in these pages that justices simply make up constitutional law as they
go along, following subjective criteria instead of striving to uphold principle and precedent.

Posner appears to see the Constitution as a fantastically

elastic proposition that can be bent for conveniences sake. The greater the
In fact, Judge

potential value of the information sought to be elicited by an interrogation, he writes, the greater should
be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit
prohibition of coercive interrogation, or even of torture, to block such an approach.

Many of Judge Posners arguments in this book are riddled with self-serving
contradictions. While he declares that the Bill of Rights should not be interpreted so broadly
that any measure that does not strike the judiciary as a sound response to terrorism is deemed
unconstitutional, he also argues that a constitutional right should be modified when changed
circumstances indicate that the right no longer strikes a sensible balance between competing
constitutional values, such as personal liberty and public safety.

In another chapter, which discusses warrantless eavesdropping by the

N.S.A., Judge Posner shrugs off the concern that government scrutiny of
private communications could lead to embarrassment, intimidation or
blackmail of the administrations opponents. While he acknowledges that such
things have happened in the past, he says that they are less likely to
happen today because factors like the growth of a culture of leaking and whistleblowing and more numerous and competitive media have converged to make
American government a fishbowl, and secrets concerning matters that interest the public cannot be kept
for long.

Later in the book, however, he suggests that peoples privacy (regarding

information collected by government data mining) would be better protected if there
were more restrictions placed on the news media and the principle of the
Pentagon Papers case were relaxed to permit measures to prevent the media from publishing properly
classified information.

Other arguments in this volume are no more than unsubstantiated indeed,

highly dubious assertions. Judge Posner writes that it is better that the president assume
the full responsibility for national security surveillance than that responsibility be diffused by involving
judges because when power is concentrated, so is responsibility: There would be fewer executions, he
reasons, if the sentencing judge had to administer the lethal injection.
Judge Posner also insists that there is little reason for the judicial branch of government to act as a check
on presidential overreaching when national security measures are agreed upon by Congress and the White
House, because the legislative and executive branches are rivalrous even when nominally controlled by
the same political party. The Republican Congress, he asserts in the face of overwhelming evidence to the
contrary, has not been a rubber stamp for the national security initiatives of the Bush administration.

Posner is willing to use

virtually any argument logical or not to redefine constitutionally
guaranteed rights like freedom of speech during wartime. For instance, he
By the end of this chilling book, the reader realizes that Judge

expresses irritation with the Supreme Courts 1969 Brandenburg ruling, which stipulated that speech
advocating violence or other criminal conduct cannot constitutionally be suppressed unless it is directed
to inciting or producing imminent lawless action and is likely to incite or produce such action.
Although Judge Posner writes that in the present circumstances the enactment of laws forbidding radical
Islamist expression would be needlessly provocative, he ominously adds that the situation may change
and that he believes the incitement/threat category could be expanded to include generalized advocacy
of violence against the United States.
In his opinion, he says, to tell Congress and the president that they can do nothing to prevent forms of
advocacy likely to multiply the number of future terrorists makes no more sense than telling them that
they cannot prevent the publication of recipes for bioweapons because it would probably take years to get
from the recipe to the actual manufacture, let alone use, of the weapons.
Judge Posner believes that additional counterterrorist measures, in particular in the related areas of
electronic surveillance and computerized data mining, could be taken without violating the Constitution
(even if there were a clear constitutional right to informational privacy), especially if the effect on privacy
is minimized by a strict rule against using information obtained through such means for any purpose other
than to protect national security. And he writes that coercive interrogation up to and including torture
might survive constitutional challenge as long as the fruits of such interrogation were not used in a
criminal prosecution.
So is there anything Judge Posner thinks the Constitution forbids? He writes: But there is no handle in the
constitutional text for the unilateral assumption of dictatorial powers by the president, no matter how
desperate the circumstances. We dont want the Constitution to be just an old piece of parchment.
That snarkily delivered just, along with the use of the adjective unilateral to modify assumption of

this book suggests that Judge Posner does regard the

Constitution as an old piece of parchment a piece of parchment with certain
rules, but rules that are made to be broken by a president during
an emergency, no matter how long that emergency may last.
dictatorial powers, says it all:

They Say: Posner Privacy Irrelevant

Posners anti-privacy argument breeds conformity and
passivity.
Greenwald 14 Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public
Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept,
former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent
Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of
Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award
for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for
Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundations Pioneer Award,
holds a J.D. from New York University School of Law, 2014 (What Bad, Shameful, Dirty Behavior is U.S.
Judge Richard Posner Hiding? Demand to Know., The Intercept, December 8th, Available Online at
https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hidingdemand-know/, Accessed 06-28-2015)
Richard Posner has been a federal appellate judge for 34 years, having been nominated by President

Posner said the NSA should have

the unlimited ability to collect whatever communications and other
information it wants: If the NSA wants to vacuum all the trillions of bits of information that are
crawling through the electronic worldwide networks, I think thats fine. The NSA should have
carte blanche to collect what it wants because privacy interests
should really have very little weight when youre talking about national
security.
Reagan in 1981. At a conference last week in Washington,

His rationale? I

think privacy is actually overvalued, the distinguished jurist

pronounced. Privacy, he explained, is something people crave in order to prevent others from
learning about the shameful and filthy things they do:
Much of what passes for the name of privacy is really just trying to conceal the disreputable parts
of your conduct. Privacy is mainly about trying to improve your social and business opportunities
by concealing the sorts of bad activities that would cause other people not to want to deal with
you.

Unlike you and your need to hide your bad and dirty acts, Judge Posner
has no need for privacy or so he claims: If someone drained my cell
phone, they would find a picture of my cat, some phone numbers,
some email addresses, some email text, he said. Whats the big
deal? He added: Other people must have really exciting stuff. Do they narrate their adulteries, or
something like that?
I would like to propose a campaign inspired by Judge Posners claims (just by the way, one of his duties as
a federal judge is to uphold the Fourth Amendment). In doing so, Ill make the following observations:

note the bargain Judge Posner offers, the one that is implicitly at the
heart of all surveillance advocacy: as long as you make yourself
extremely boring and unthreatening dont exercise your political
First,

liberties, but instead, just take pictures of your cat, arrange Little League
games, and exchange recipes then you have nothing to worry about
from surveillance. In other words, as long as you remain what Judge
Posner is an obedient servant of political and corporate power then
you have nothing to worry about from surveillance.
The converse, of course, is equally true: if you do anything unorthodox or
challenging to those in power if, for instance, you become a civil rights
leader or an antiwar activist then you are justifiably provoking
surveillance aimed at you. That is the bargain at the heart of the antiprivacy case, which is why a surveillance state, by design, breeds
conformity and passivity which in turn is why all power centers
crave it. Every time surveillance is discussed, someone says something
to the effect of: Im not worried about being surveilled because Ive
chosen to do nothing thatd be interesting to the government or
anyone else. That self-imprisoning mindset, by itself, is as harmful as
any abuse of surveillance power (in September, I gave a 15-minute TED talk specifically
designed to address and refute the inane nothing to hide anti-privacy rationale Judge Posner offers here).

Posners anti-privacy argument is rooted in privilege

surveillance always targets dissidents and marginalized
groups.
Greenwald 14 Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public
Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept,
former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent
Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of
Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award
for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for
Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundations Pioneer Award,
holds a J.D. from New York University School of Law, 2014 (What Bad, Shameful, Dirty Behavior is U.S.
Judge Richard Posner Hiding? Demand to Know., The Intercept, December 8th, Available Online at
https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hidingdemand-know/, Accessed 06-28-2015)

Posners is the voice of unadulterated wealth, power and

privilege talking. The distinguished judge like all those of similar position
and class has all sorts of ways that his personal privacy is
safeguarded: government-provided security, electronic gates that
protect his home and office, a staff of people who work for him. Its
almost never the Judge Richard Posners of the world who are subjected to
abusive surveillance, but rather actual dissidents, activists and
members of marginalized and minority groups. Thats true even in
the most tyrannical states: in Mubaraks Egypt, it was the pro-democracy protesters in Tahrir
Second, Judge

Square targeted with violence, torture, and other forms of repression, not the loyal and corrupt judges who

Servants of power are usually immune, or at least

unmolested. So its always very easy for the Richard Posners of the world
to dismiss concerns over privacy violations because they are typically
not the ones targeted.
served Mubaraks agenda.

consider what he said and

did in a 2011 case brought by the ACLU where he mocked the idea that
citizens have a First Amendment right to film the police . During Oral Argument,
To see how power-based rather than principled Posners views are,

he immediately interrupted the ACLU lawyer arguing that citizens have this right, and the following
exchange occurred:

JUDGE POSNER: Once all this stuff can be recorded, theres going to be a lot more of this snooping
around by reporters and bloggers.
ACLU attorney Richard OBrien: Is that a bad thing, your honor?
JUDGE POSNER: Yes, it is a bad thing.

There is such a thing as privacy.

Posner recognizes rights only when they belong

to agents of the state or the economic elite. When its ordinary
citizens at issue, he snidely rejects any such protections. Of course, this is
exactly backwards: those exercising public power (police officers) have a
lower entitlement to privacy than private individuals. But powerservants like Judge Posner view only actors of the state and those who
serve it (such as himself) as entitled to these prerogatives. Thats become
the corrupt essence of the U.S. justice system, and its perfectly
expressed by Judge Posners radically divergent views based on whose
privacy is at stake.
Like so many federal judges, Judge

Posners anti-privacy argument is obviously disingenuous he

doesnt live a fully public life.
Greenwald 14 Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public
Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept,
former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent
Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of
Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award
for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for
Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundations Pioneer Award,
holds a J.D. from New York University School of Law, 2014 (What Bad, Shameful, Dirty Behavior is U.S.
Judge Richard Posner Hiding? Demand to Know., The Intercept, December 8th, Available Online at
https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hidingdemand-know/, Accessed 06-28-2015)

if Judge Posner really believes what hes saying about privacy, and
if its really true that he personally has nothing to hide he just has some cat
videos and some pictures of his grandkids then he should prove that with his
actions. Every day, he should publicly post online all of the emails he
sends and receives, along with transcripts of his telephone and inperson conversations. Or just put a recording device in his office and
on his person, and upload the full audio every day. He should also put
video cameras in all the rooms in his home and office, and stream it
live on the internet 24 hours a day. If theres a specific reason for
excluding a particular conversation say, something relating to attorney/client privilege
he can post a log identifying the metadata of the withheld
communications. If he agrees to this framework, Id work hard on a campaign to raise the funds to
Third,

do this, and have no doubt the money could be raised very quickly.

What possible objections could he have to any of this? After all, the Hon.
Richard Posner has nothing to hide. Hes a good person. He does nothing
shameful, corrupt, adulterous, or otherwise embarrassing nothing
constituting the sorts of bad activities that would cause other people not to want to deal with [him].
Perish the thought. So why isnt he doing this, or why wouldnt he? A campaign to
encourage him to agree to this system of transparency to show he has the courage of his convictions
would, I think, be constructive. Anyone wishing to do so can submit that encouragement to him, and to
argue for its virtue, by email or telephone, here or here.

They Say: Other Impacts Outweigh

Constitution
Unconstitutional policies should be rejected on-face it is a
jurisdictional issue.
Carter 87 Steven Carter, Professor of Law at Yale University, 1987 (From Sick Chicken to Synar:
The Evolution and Subsequent De-Evolution of the Separation of Powers, Brigham Young University Law
Review, Issue 3, Available Online at http://lawreview.byu.edu/archives/1987/3/car.pdf, Accessed 01-122013)
The Constitution, which is after all a species of law, is thus quite naturally viewed as a potential
impediment to policy, a barrier that must be adjusted, through interpretation or amendment, more often
than preservation of government under that Constitution is viewed as a desirable policy in itself. In this the
modern student of policy is like the modern moral philosopherand like a good number of constitutional
theorists as wellin denigrating the value of preserving any particular process and exalting the desirable

constitutionalism assigns enormous importance to process,

and consequently assigns costs, albeit perhaps intangible ones, to violating the
constitutional process. For the constitutionalist, as for classical liberal democratic
theory, the autonomy of the people themselves, not the achievement of
some well-intentioned government policy, is the ultimate end for which
the government exists. As a consequence, no violation of the means the
people have approved for pursuit of policyhere, the means embodied in
the structural provisions of the Constitutioncan be justified through
reference to the policy itself as the end.
result. But

They Say: Violations of Constitution Not

Unique
Reject every violation of the Constitution even if nonunique.
CTFP 99 Chattanooga Times Free Press, 1999 (Upholding the Constitution, July 14

th

, Available

Online via Lexis)

It long has been highly disturbing that many public officials -- from the
president of the United States, members of Congress, justices of the U.S. Supreme Court and on down the
line -- have often ignored the Constitution of the United States and the Constitutions
of the various states when what the Constitutions say is at variance with what the officials want to do.
Thomas Jefferson had it right when he said: "In questions of power, then, let no more be heard of
confidence in man, but bind him down from mischief by the chains of the Constitution."
But we have seen countless public officials swear to uphold the Constitution -- and then flagrantly violate it
in many ways. They range from sending American troops into unconstitutional, undeclared war to
permitting the killing of millions of unborn American babies with no valid constitutional justification
whatsoever.
There have been huge violations of the Constitution of the United States and of the Constitutions of the 50

if we are to maintain
the rule of law, justice and liberty in America, we should abide by each
Constitution in every respect, large or small, or approve amendments by
states. There also have been many relatively minor violations of them. But

proper constitutional processes if that seems advisable.

In Chattanooga we have seen a case involving "little" violations. But no violation is insignificant, and none
should be tolerated.
Throughout his service on the bench, Chattanooga City Judge Walter Williams has been zealous for law
enforcement. Sometimes he has been overzealous. Being a champion of traffic safety and highly critical of
speeders, Judge Williams on occasion has "thrown the book" at offenders. Specifically, he has relied upon a
1991 Tennessee law providing for penalties to be as much as $500.
The problem, however, is that the 1991 law is contrary to the Tennessee Constitution, which says in Article
VI, Section 14: "No fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall
be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the
fine should be more than fifty dollars."
There are no juries in City Court. So under the Constitution there can be no fines of more than $50. It is
reported, however, that some 225 fines of more than $50 have been imposed.
That was the issue that Criminal Court Judge Doug Meyer was called to rule upon.
"Judge Williams only followed what was enacted by the Legislature and City Council," Judge Meyer said. "I
don't fault him for that. He was following what he thought the law to be." But Judge Meyer continued: "If
someone is fined $50 in Sessions Court for what is essentially a state offense, and the City Court fine for
the same offense is $500, clearly that is not equal justice under the law."
The 1991 law used the term "monetary penalties" but the meaning is clearly "fines." So Judge Meyer said,
"I have to look at the Constitution and what it means. It is not what you call something, but what it actually
is that really counts. Obviously these monetary penalties are fines."

Judge Meyer is absolutely right.

How we wish that -- in every case involving either the national or the state
Constitutions -- every justice, judge, president, member of Congress,
governor, legislator and all other officials who swear to uphold the
Constitution would stick to the honest meaning of words.
The liberty of us all in America stands on the foundation of
constitutional government. We should allow no one to undermine
or erode that foundation on issues either small or large.

They Say: No Threshold For Impact

Dont take the risk the Constitution is too important to play
Russian roulette.
Eidsmoe 92 John A. Eidsmoe, Lieutenant Colonel and Constitutional Attorney in the United States
Air Force Reserve, Professor of Law at the Thomas Goode Jones School of Law at Faulkner University, holds
a J.D. from the University of Iowa, 1992 (A New Constitutional Convention? Critical Look at Questions
Answered, and Not Answered, by Article Five of the United States Constitution, USAFA Journal of Legal
Studies (3 USAFA J. Leg. Stud. 35), Available Online to Subscribing Institutions via Lexis-Nexis)

proponents insist that these dangers are minuscule compared with

the destabilization and unrest that would result from an economic
collapse, which they believe is imminent if the deficit is not brought under control. n51 But serious
Concon

questions must be raised as to whether a balanced budget would restrain an irresponsible spendthrift
Congress any more effectively that current statutes requiring that the budget be balanced, statutes which

But over and above this concern, let us remember the timeless
words of Daniel Webster:
Congress routinely ignores.

Other misfortunes may be borne, or their effects overcome. If

disastrous war should sweep our commerce from the ocean,
another generation may renew it; if it exhaust our treasury,
future industry may replenish it; if it desolate and lay waste our
fields, still under a new cultivation, they will grow green again,
and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol
were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the

All these might be rebuilt. But who shall reconstruct

the fabric of demolished government? Who shall rear again the welldust of the valley.

proportioned columns of constitutional liberty? Who shall frame together the skilful architecture
which united national sovereignty with State rights, individual security, and public prosperity? No,

if these columns fall, they will be raised not again. Like the Coliseum
and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer
tears, however, will flow over them, than were ever shed over the remnants of a more
glorious edifice than Greece or Rome ever saw, the edifice of constitutional
American liberty. n52
It is possible that a constitutional convention could take place and none of these
drastic consequences would come to pass. It is possible to play
Russian roulette and [*58] emerge without a scratch; in fact, with only one
bullet in the chamber, the odds of being shot are only one in six. But when the stakes are as
high as one's life, or the constitutional system that has shaped this
nation into what it is today, these odds are too great to take the risk.

They Say: Constitution is Indeterminate

The Constitution is not indeterminate.
Shaw 13 Julia Shaw, Research Associate and Program Manager at the B. Kenneth Simon Center for
Principles and Politics at the Heritage Foundation, Ph.D. Candidate in Political Theory at the Catholic
University of America, 2013 (In denial over Constitutions enduring relevance, Washington Times,
January 11th, Available Online at http://www.washingtontimes.com/news/2013/jan/11/in-denial-overconstitutions-enduring-relevance/#ixzz30qk59WFd, Accessed 05-05-2014)

Seidmans premise is wrong. There arent infinite potential

meanings to the Constitution.
Yet Mr.

the Constitution is crystal clear about many things. Moreover,

thanks to commentaries, pamphlets, letters, well-documented debates
and drafting records from the Founding Fathers, the meaning of the
Constitution is, in fact, knowable. James Madisons Notes on the Convention offer a detailed
Indeed,

account of the drafting of the Constitution. The Federalist Papers and Justice Joseph Storys Commentaries
on the Constitution clearly explain the meaning of the Constitution. Using these works as a model, The
Heritage Guide to the Constitution offers a comprehensive explanation and analysis of every clause in the
Constitution.

many provisions of the Constitution have clear,

uncontroversial meanings. The president must swear an oath to preserve and defend the
Despite what Mr. Seidman writes,

Constitution before taking office. The House has to keep a journal. No person shall be convicted of treason
without the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
There is no question that the Constitution creates two houses of Congress (not one, or five), that
representatives must be at least 25 years old to serve, or that No Soldier shall, in time of peace be
quartered in any house, without the consent of the Owner.

To be sure, there are controversial provisions, and throughout American

history there has been robust disagreement about the meanings of
specific clauses and powers. Who can suspend habeas corpus? Can Congress use its
spending power on internal improvements? Must the president enforce every law? Does the First
Amendment protect anonymous speech or obscenity?

Still, because the Constitutions meaning is knowable, as Reagan administration

U.S. Attorney General Edwin Meese has explained, the document merits a particular
approach. Where the language of the Constitution is specific, it must be
obeyed. Where there is demonstrable consensus among the Founders
and ratifiers as to a principle stated or implied in the Constitution, it
should be followed, he writes. Where there is ambiguity as to the precise
meaning or reach of a constitutional provision, it should be interpreted
and applied in a manner so as to at least not contradict the text of the
Constitution itself. Such an approach does not remove controversy, or

disagreement, but it does cabin it within a principled

constitutional tradition that makes real the Rule of Law.
The Constitutions language is not broad enough to
encompass an almost infinitely wide range of positions. Much of the
Constitutions language leads inexorably to one correct answer.
Even the toughest, thorniest clauses still yield only a narrow range of
possibly correct answers.
Mr. Seidman is wrong.

They Say: Constitutionalism Bad

Abandoning the Constitution risks tyranny theres no
realistic alternative.
Tribe 13 Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at
Harvard Law School, holds eleven honorary doctorate degrees, helped write the constitutions of South
Africa, the Czech Republic, and the Marshall Islands, 2013 (Is It Time to Scrap the Constitution?, Letter To
The Editor New York Times, January 3rd, Available Online at
http://www.nytimes.com/2013/01/04/opinion/is-it-time-to-scrap-the-constitution.html, Accessed 05-052014)

Seidman wants us to kick our constitutional-law addiction. Why? He proclaims our

political system dysfunctional and our government broken but makes no convincing
case that the Constitution is to blame for our recurring political
breakdowns or that giving up on it would reduce our dysfunction. But
malformed though it is, the rickety old structure has served us well
over the centuries.
Louis Michael

Seidman offers nothing to suggest how we might go about governing

ourselves once liberated from the Constitution, the skeletal structure
that frames a living conversation about our relationship with
government, not blind worship of a poetic piece of parchment.
Mr.

He confidently predicts that his proposal wouldnt yield total anarchy.

But he doesnt explain how we could preserve even the political
stability he values while treating the Constitutions provisions as mere
recommendations, to be accepted or rejected through processes whose
constitution-free structure he never specifies.
He tells us that he would preserve free speech and religion, equal
protection and limited government, but he never explains how he
picks those values over others or how his maddeningly vague
proposal would give real freedom a chance rather than risk
tyranny.

The alternative wont protect fundamental values like freedom

of speech and due process.
Adler 12 Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director of the Center for
Business Law and Regulation at Case Western Reserve University, holds a J.D. from George Mason
University, 2012 (Seidman: Lets Give Up on [Parts of] the Constitution, The Volokh Conspiracya
scholarly law blog, December 31st, Available Online at http://www.volokh.com/2012/12/31/seidman-letsgive-up-on-parts-of-the-constitution/, Accessed 05-05-2014)

Seidman cites what he characterizes as a proud history of constitutional disobedience to suggest that
ignoring the document would be all to the good, suggesting that the country would be better off if political
disputes about everything from budgetary policy to military conflict were merely debated on the policy

Seidman conspicuously ignores the various policy measures

throughout our nations history that would have remained the law of
the land were it not for the Constitution, including numerous
restrictions on the freedom of speech and the detention policies struck
down by the Court in Boumediene.
merits. Yet

Seidman suggests that liberal constitutional values such as the

freedom of speech and religion, equal protection, and due process are
important, whether or not they are in the Constitution and that we
should continue to follow those requirements out of respect, not
obligation. But our political history shows quite clearly that the
political process is more than willing to trample such principles,
often with substantial popular support even with a constitutional
obligation to respect. Yet the whole point of a constitution is to
prevent such abuses and constrain popular majorities.

They Say: DA Turns Case

The negs impact comparison relies on juking the stats.
Balancing liberty and security is a rigged game that always
already subjugates rights.
Sidhu 9 Dawinder S. Sidhu, Visiting Researcher at the Georgetown University Law Center, former
Fellow at the Center for Internet and Society at Stanford University, holds a J.D. from The George
Washington University Law School and an M.A. in Government from Johns Hopkins University, 2009
(Wartime America and the Wire: A Response to Posner's Post-9/11 Constitutional Framework, George
Mason University Civil Rights Law Journal (20 Geo. Mason U. Civ. Rts. L.J. 37), Fall, Available Online to
Subscribing Institutions via Lexis-Nexis)
IV. Rigging the Game
"Juking the stats." n101
- Roland "Prez" Pryzbylewski, The Wire

Posner not only presents an unhelpful balancing scheme

between liberty and security, a contest that is attended only by civil libertarians and hawkish
security folks, but then also stacks the deck against the preservation of
liberty such that security will invariably be dominant and liberty must
consequently give way. n102 In particular, Posner posits that in times of war,
greater weight is to be placed on security measures due to the
heightened interest in protecting the homeland. He writes, "In times of danger, the
In Not a Suicide Pact,

weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are
narrowed." n103 He continues, "[A] decline in [*55] security causes the balance to shift against liberty,"
n104 and "the more endangered we feel, the more weight we place on the interest in safety." n105

according to Posner, elevating security concerns above liberty

interests may be necessary to ward off future terrorist activity. He
speculates that "[a] minor curtailment of present civil liberties, to the
extent that it reduces the probability of a terrorist attack, reduces the
likelihood of a major future curtailment of those liberties." n106 Otherwise,
Moreover,

"rooting out" the enemy "might be fatally inhibited if we felt constrained to strict observance of civil

From the government's point of view, Posner simply notes, "It

is better to be safe than sorry." n108
liberties." n107

Prez and others in The Wire often expressed their disappointment with
the concept of "juking the stats." n109 This refers to a situation in
which the powers that bepolice commanders, high-level public school officials, or politicians
would manipulate perspectives or information to ultimately
achieve a predetermined, preferred outcome. n110 It refers to the
rigging of the system; it is result-oriented decisionmaking by
those at the top of the power structure to the detriment [*56] of those

stakeholders with little or no bargaining ability. n111 For example, in an effort to

appease the city's political leadership and the public to which the politicians were accountable, the highlevel police officials implemented a strategy to increase the absolute number of arrests; in essence, they
manufactured the impression that they were making a dent in city crime. n112 Although the number of
arrests did increase, the arrests were of minor users and offenders; as such, police resources were drawn
away from infiltrating the primary sources of the city's drug and related crime problems. n113 Even when
the police furnished statistics that supported the suggestion that they were successful in addressing crime,
in actuality the drug camp was unfazed and the public remained vulnerable to widespread drug trafficking
and associated criminal activities. n114 The campaign, though successful on its face, was in truth
ineffective and counterproductive.

Just as information could be "juked" to support a self-fulfilling outcome

in The Wire, legal commentators recognize that the constitutional equation
suggested by Posner is not objectively calibrated, but instead will
yield only one pre-determined answer: Civil liberties must defer to
security programs or policies. David Cole of the Georgetown University Law Center
observed that "constitutional interpretation for Posner is little more
than an all-things-considered balancing actand when the potential
costs of a catastrophic terrorist attack are placed on the scale, the
concerns of constitutional rights and civil liberties are almost
inevitably outweighed." n115 Two others criticize Posner's law and economics approach to
security issues because his "method works largely through a cost-benefit
analysis where equality and antisubordination never quite measure up
to the concerns against [*57] which they are being measured." n116 Similarly,
another commentator writes that Posner's "method ... tilts in the favor of security more often than not."
n117

In proposing that post-9/11 constitutional questions implicating the

security of the nation be reduced to a balancing of purportedly competing
interests, Posner offers a mechanism that is not only faulty in design,
as both security and liberty can be simultaneously managed, but also
troublesome in its application, as security invariably subjugates other
constitutional interests, specifically individual rights. Accordingly, Posner's
recommendation is consistent with the "rigging" exhibited and
discredited in The Wiregiving the impression of an objective
approach to produce a pre-determined outcome, but in essence
depriving the people of a legitimate debate on the proper
relationship between national security and individual rights.

They Say: Isaac 2

Isaac is wrong hes demanding an all-out War on Terror.
Hows that going?
Steger 2 Manfred B. Steger, Associate Professor of Politics & Government at Illinois State
University, holds a Ph.D. in Political Science from Rutgers University, 2002 (Ends, Means, and the Politics
of Dissent: Reply to Jeffrey C. Isaac, Dissent, Volume 49, Issue 2, Spring, Available Online to Subscribing
Institutions via EBSCOhost, p. 74-75)
Idealizing Realist Politics

Another reason for the systemic distortion and marginalization of the campus
lefts pacifism is the widespread idealization of so-called realist politics.
Throughout his article, Isaac adopts the questionable metaphysical
assumptions that underlie the realist paradigm: In the best of all
imaginable worlds, it might be possible to defeat al-Qaeda without
using force and without dealing with corrupt regimes and political
forces like the Northern Alliance. But [end page 74] in this world it is not
possible. And this, alas, is the only world that exists. Note how Isaac
claims for himself the same omniscient vantage point that he so
dislikes in the campus left. This arrogant spirit of ontological
absolutism pervades his essay. Here is another example: To
accomplish anything in the political world, one must attend to the
means that are necessary to bring it about. Of course, having defined
what counts as the political world, Isaac employs the term
necessary to imply war-like activities. In short, the only way to fight
terrorism is to declare a large-scale war on it, thus fighting violence
with greater violence. Anybody challenging Isaacs conclusions or his
underlying realist metaphysics is nave, unpragmatic, vague,
irrational, an accomplice of terrorism, andthis is my favorite chargeout
of touch with the preoccupations and opinions of the vast majority of Americans. Isaacs
cheap rhetorical appeal to common sense, is, indeed, an
embarrassing move for an intellectual descendent of the gadfly Socrates who
contributes regularly to a progressive magazine titled Dissent.

The idealization of realism is very much part of the dominant ideology

of violence. Once people accept that large-scale war constitutes the
only realistic response to September 11, then its many failings are
easily shrugged off as unavoidable byproducts or collateral
damage, while its often meager achievements are blown out of
proportion to maintain the publics faith in the effectiveness of
violence. A truly realistic evaluation of the retaliatory violence

employed by the United States and its allies in the war on terrorism
reveals the remarkable ineffectiveness of the violent method.
What has actually been achieved?
We toppled the Taliban regime, but the fighting in Afghanistan hasnt come
to an end. We killed between a thousand and thirty-seven hundred Afghan
civilians. The oppressive situation for Afghan women has improved only marginally. The example
of a large-scale war on terrorism has been copied by various regimes
to justify aggressive action against subversives. Take, for example,
conflicts in Israel/Palestine, India/Pakistan, Colombia, Central Asian
republics, and so on. Although the war on terrorism costs U.S. taxpayers billions of dollars, our
government has steadily expanded it to other parts of the world. The United States has struck
questionable alliances with groups and nations that are profoundly
undemocratic and have long records of human rights abuses. Civil
rights and liberties in our country are being undermined in the name
of national securitythink of the 2001 Patriot Act. Finally, Osama bin Laden, Ayman
al- Zawahiri, Mullah Omar, and other leading Taliban and al-Qaeda members have not been captured. This

but because large-scale war is

supposedly the only realistic course of action, most Americans
tolerate the failures of our military response.
is by no means a great scorecard for the violent method,

I agree with Isaacs assertion that finding a proper

relationship between means and ends is the most difficult challenge for
both political thinkers and activists. Contrary to his account, however, I
believe that the pacifist campus left has played a constructive role by
countering realist mainstream arguments that favor an all-out
war on terrorism. This overreliance on military means has only pulled
us further into the apocalyptic scenario of terrorist strikes,
counterstrikes, and deepening misery. It has also contributed to the
rapid buildup of a national security regime that threatens our
liberties and democratic arrangements. Isaacs pigeonholing of
the pacifist campus left is wrong; on balance, its members have
expressed morally nuanced opinions and offered pragmatic
alternative strategies.
Let me emphasize, finally, that

The War on Terror has killed more than 1.3 million people.
Wilkins 15 Brett Wilkins, Editor-at-Large for U.S. News at Digital Journal, 2015 (Doctors' group
says 1.3 million killed in U.S. 'War on Terror', Digital Journal, March 25th, Available Online at
http://www.digitaljournal.com/news/world/study-1-3-million-killed-in-usa-war-on-terror/article/429180,
Accessed 06-21-2015)

A group of international physicians' organizations has published a

study concluding US-led wars in Iraq, Afghanistan and Pakistan have
killed more than 1.3 million people.
The Nobel Prize-winning International Physicians for the Prevention of
Nuclear War, along with Physicians for Social Responsibility and
Physicians for Global Survival have released a report titled "Body Count:
Casualty Figures after 10 Years of the 'War on Terror.'" The study examined direct and
indirect deaths caused by more than a decade of US-led war in three
countries, Iraq, Afghanistan and Pakistan, but did not include deaths in
other countries attacked by American and allied military forces,
including Yemen, Somalia, Libya and Syria.
The study noted that while the United States closely monitors casualty figures for allied troops4,804

the number of civilians and enemy

combatants killed by US and allied forces is "officially ignored."
coalition deaths in Iraq; 3,485 in Afghanistan,

The IPPNW investigation, which scoured the results of individual

studies and data published by United Nations organizations,
government agencies and non-governmental organizations,
concluded the ongoing war "has, directly or indirectly, killed around 1
million people in Iraq, 220,000 in Afghanistan and 80,000 in
Pakistan."
"The

figure is approximately 10 times greater than that of which the

public, experts and decision makers are aware," the study's authors write. "And
this is only a conservative estimate. The total number of deaths in
the three countries... could also be in excess of 2 million."

The consequences of terrorism dont justify violations of

fundamental freedom math.
Friedersdorf 13 Conor Friedersdorf, Staff Writer for The Atlantic, 2013 (The Irrationality of
Giving Up This Much Liberty to Fight Terror, The Atlantic, June 10th, Available Online at
http://www.theatlantic.com/politics/archive/2013/06/the-irrationality-of-giving-up-this-much-liberty-to-fightterror/276695/, Accessed 06-21-2015)

As individuals, Americans are generally good at denying al-Qaeda the

pleasure of terrorizing us into submission. Our cities are bustling; our subways are
packed every rush hour; there doesn't seem to be an empty seat on any flight I'm ever on. But as a
collective, irrational cowardice is getting the better of our polity.
Terrorism isn't something we're ceding liberty to fight because the
threat is especially dire compared to other dangers of the modern

world. All sorts of things kill us in far greater numbers. Rather, like
airplane crashes and shark attacks, acts of terror are scarier than most
causes of death. The seeming contradictions in how we treat different
threats suggest that we aren't trading civil liberties for security, but a
sense of security. We aren't empowering the national-security state so
that we're safer, but so we feel safer.
Of course we should dedicate significant resources and effort to
stopping terrorism. But consider some hard facts. In 2001, the year when
America suffered an unprecedented terrorist attack by far the biggest in its history roughly 3,000
people died from terrorism in the U.S.
Let's put that in context.

That same year in the United States:

* 71,372 died of diabetes.

* 29,573 were killed by guns.
* 13,290 were killed in drunk driving accidents.
That's what things looked like at the all-time peak for deaths by
terrorism. Now let's take a longer view. We'll choose an interval that still
includes the biggest terrorist attack in American history: 1999 to 2010.
terrorists killed roughly 3,000 people in the United States. And in that
interval,
Again,

* roughly 360,000 were killed by guns (actually, the figure the CDC gives is 364,483 -- in
other words, by rounding, I just elided more gun deaths than there were total terrorism deaths).

* roughly 150,000 were killed in drunk-driving accidents.

[Graphic Omitted]

Measured in lives lost, during an interval that includes the biggest

terrorist attack in American history, guns posed a threat to American
lives that was more than 100 times greater than the threat of
terrorism. Over the same interval, drunk driving threatened our safety
50 times more than terrorism.
Those aren't the only threats many times more deadly than terrorism,
either.

The CDC estimates that food poisoning kills roughly 3,000 Americans
every year. Every year, food-borne illness takes as many lives in the
U.S. as were lost during the high outlier of terrorism deaths. It's a killer

more deadly than terrorism. Should we cede a significant amount

of liberty to fight it?
Government officials, much of the media, and most American citizens talk
about terrorism as if they're totally oblivious to this context as if it is
different than all other threats we face, in both kind and degree. Since
The Guardian and other news outlets started revealing the scope of the
surveillance state last week, numerous commentators and government officials,
including President Obama himself, have talked about the need to properly
"balance" liberty and security.
The U.S. should certainly try to prevent terrorist attacks, and there is a lot that
government can and has done since 9/11 to improve security in ways that are totally unobjectionable.

But it is not rational to give up massive amounts of privacy and

liberty to stay marginally safer from a threat that, however scary, endangers
the average American far less than his or her daily commute. In
2011*, 32,367 Americans died in traffic fatalities. Terrorism killed 17
U.S. civilians that year. How many Americans feared dying in their
vehicles more than dying in a terrorist attack?
[Footnote (*) moved from end of article: Said Ronald Bailey in a piece published in September of 2011, " a

rough calculation suggests that in the last five years, your chances of
being killed by a terrorist are about one in 20 million. This compares
annual risk of dying in a car accident of 1 in 19,000; drowning in a
bathtub at 1 in 800,000; dying in a building fire at 1 in 99,000; or being
struck by lightning at 1 in 5,500,000. In other words, in the last five years
you were four times more likely to be struck by lightning than killed
by a terrorist."
Certainly not me! I irrationally find terrorism far scarier than the sober incompetents and irresponsible

The
idea that the government could keep me safe from terrorism is very
emotionally appealing.
drunks who surround my vehicle every time I take a carefree trip down a Los Angeles freeway.

But intellectually, I know two things:

America has preserved liberty and privacy in the face of threats far
greater than terrorism has so far posed (based on the number of people actually killed
in terrorist attacks), and we've been better off for it.
*

Ceding liberty and privacy to keep myself safe from terrorism doesn't
even guarantee that I'll be safer! It's possible that the surveillance
state will prove invasive and ineffective. Or that giving the state so
*

much latitude to exercise extreme power in secret will itself threaten

my safety.
I understand, as well as anyone, that terrorism is scary. But it's time to stop
reacting to it with our guts, and to start reacting with our brains, not just
when we're deciding to vacation in Washington or New York, but also when we're making
policy together as free citizens. Civil libertarians are not demanding
foolish or unreasonable courage when they suggest that the threat of
terrorism isn't so great as to warrant massive spying on innocent
Americans and the creation of a permanent database that practically
guarantees eventual abuse.
Americans would never welcome a secret surveillance state to reduce
diabetes deaths, or gun deaths, or drunk-driving deaths by 3,000 per
year. Indeed, Congress regularly votes down far less invasive policies
meant to address those problems because they offend our notions of
liberty. So what sense does it make to suggest, as Obama does, that
"balancing" liberty with safety from terrorism which kills far fewer
than 3,000 Americans annually compels those same invasive
methods to be granted, in secret, as long as terrorists are plotting?
That only makes sense if the policy is aimed at lessening not just at wrongful deaths, but also exaggerated

Do you know what scares me more

than terrorism? A polity that reacts to fear by ceding more
autonomy and power to its secret police.
fears and emotions**. Hence my refusal to go along.

Utilitarian defenses of NSA surveillance are wrong because

they conflate efficiency with utility. The case outweighs within
a utilitarian framework.
Hladik 14 Casey Hladik, Philosophy Student at Ball State University, citing Alan RusbridgerEditor
of The Guardian newspaper which published articles by Glenn Greenwald and its own reporters about the
National Security Agency based on documents leaked by Edward Snowden, and John Stuart Milla 19 th
century British philosopher who wrote the seminal work Utilitarianism, 2014 (Rusbridgers The Snowden
Leaks and the Public and Mills Utilitarianism: An Analysis of the Utilitarian Concern of Going Dark,
Stance, Volume 7, April, Available Online at
http://www.bsu.edu/libraries/virtualpress/stance/2014_spring/03Hladik29-40.pdf, Accessed 06-20-2015, p.
38-40)
Conclusion

What the British and American people gain in security from the
surveillance activities of the NSA and GCHQ is modest in comparison to what
they lose in security. These practices also strip away their moral

rights to privacy and freedoms. The utilitarian appeal put forth by

the British and American officials who support these practices has been
shown to be unsustainable in a utilitarian frameworklargely
because they determine the dictates of utility with a fundamental lack
of understanding of the pleasures and pains involved. [end page 38]
according to Mills theory of utility, these surveillance programs
are expedient rather than ethical. Indeed, Mill writes, there have been
many institutions throughout history which have been justified by
supposed appeals to utility, only to be condemned later as blatantly
unethical. One example which Mill cites is slavery: at one point in the history of
the United States, slavery was argued to be a necessity of social existence
because the social benefits outweighed the drawbacks.36 It has since
been clarified, however, that the institution is a violation of the
utilitarian paradigm that each ought to receive what he or she justly
deserves. Mill writes, The entire history of social improvement has
been a series of transitions by which one custom or institution after
another, from being a supposed primary necessity of social existence, has
passed into the rank of a universally stigmatized injustice and
tyranny.37
Therefore,

history will show that the mass surveillance programs of the NSA
and GCHQ followed the dictates of expedience rather than ethics. This
Indeed,

fact is evident in a remark by the head of a British intelligence agency: Theres nothing in it for us in being
more open about what we do.38 This official is clearly more concerned about the efficiency of his

although the NSA and GCHQ appeal to

utilitarianism in attempting to justify their practices, when these
practices (i.e., their consequences) are critiqued according to the
utilitarian framework, it becomes clear that these practices are consistent
with efficiency rather than utility. The negative consequences of
these activities clearly outweigh the positive ones: the NSA and GCHQ are
compromising rather than bolstering security in the United States and Britain,
and they are threatening the moral rights promoted in the
utilitarian framework rather than protecting them, so they are
detracting from the peaceful functioning of society rather than
facilitating it.
organization than the good of British citizens. Indeed,

Government officials who approve of the indiscriminate, large-scale

spying on American and British citizens by the NSA and GCHQ claim that, if their
practices are limited, the world will go dark and chaos will ensue.
Although the utility behind this argument initially seems
compelling, it does not hold. Those who oversee the intelligence

organizations are not fully informed as to the pleasures [end page 39] and
pains involved, and, hence, their ethical calculus is skewed. In actuality,
the negative consequences of these programs outweigh the positive
ones. As a result, these programs can be said to be expedient rather
than ethical, and they ought to be terminated.