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Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) [Hardcover]

by Richard A. Posner
3.7 out of 5 stars  See all reviews (19 customer reviews)

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Book Description

September 1, 2006 0195304276 978-0195304275 1ST
Eavesdropping on the phone calls of U.S. citizens; demands by the FBI for records of library borrowings; establishment of military tribunals to try suspected terrorists, including U.S. citizens--many of the measures taken by the Bush administration since 9/11 have sparked heated protests. In Not a Suicide Pact, Judge Richard A. Posner offers a cogent and elegant response to these protests, arguing that personal liberty must be balanced with public safety in the face of grave national danger.

Critical of civil libertarians who balk at any curtailment of their rights, even in the face of an unprecedented terrorist threat in an era of proliferation of weapons of mass destruction, Posner takes a fresh look at the most important constitutional issues that have arisen since 9/11. These issues include the constitutional rights of terrorist suspects (whether American citizens or not) to habeas corpus and due process, and their rights against brutal interrogation (including torture) and searches based on less than probable cause. Posner argues that terrorist activity is sui generis--it is neither "war" nor "crime"--and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity. Constitutional law must remain fluid, protean, and responsive to the pressure of contemporary events. Posner stresses the limits of law in regulating national security measures and underscores the paradoxical need to recognize a category of government conduct that is at once illegal and morally obligatory.

One of America's top legal thinkers, Posner does not pull punches. He offers readers a short, sharp book with a strong point of view that is certain to generate much debate.


This is inaugural volume in Oxford's new fourteen-book Inalienable Rights Series. Each book will be a short, analytically sharp exploration of a particular right--to bear arms, to religious freedom, to free speech--clarifying the issues swirling around these rights and challenging us to rethink our most cherished freedoms.

Frequently Bought Together

Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) + The Constitution in Wartime: Beyond Alarmism and Complacency (Constitutional Conflicts) + Civil Liberties and the Foreign Intelligence Surveillance Act (Terrorism: Documents of International and Local Control, Second Series)
Price for all three: $177.59

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Editorial Reviews

From Publishers Weekly

Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, inaugurates a new series on inalienable rights. The series is intended to stimulate debate, and Posner's work will do exactly that, drilling energetically into a set of issues raised by what he sees as an unprecedented emergency. In the fact of terrorism and the threat of WMDs, he argues, the scope of constitutional rights must be adjusted—i.e., narrowed—in a pragmatic but rational manner. Saying we must balance the harm new security measures inflict on personal liberty against the increased security those measures provide, Posner comes down, in most but not quite all respects, on the side of increased government power. He advocates that coercive and even brutal forms of interrogation should be allowed in proper circumstances, that all communications within the United States should be subject to interception, and that government should have authority to enjoin publication of classified information. Posner (An Affair of State) would impose limits and qualifications on these assertions of government power, but even so, his views will provoke Category 5 protest from civil libertarians. You may agree with or be appalled by Posner's cost-benefit analyses, but the author's premises are explicit, his writing is economical and precise, and he ably makes the case for his side in the national debate. (Sept. 18)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

From Booklist

Posner, a judge in the U.S. Court of Appeals, addresses the intersection of personal liberties with public safety that has been strained since the 9/11 terrorist attacks. Posner takes a pragmatic approach, recognizing a need for flexibility to prevent breaking our system of laws, national security, and individual liberties. Recognizing that terrorist acts are not easily classified as either "war" or "crime," Posner sees the need to contextualize our responses, adjusting civil liberties to accommodate the need for public safety. Underlying much of the contemporary debate is the issue of which branch of government should decide these issues in times of national crisis--the courts or the executive branch. Posner sees constitutional rights as a function of Supreme Court rulings that are primarily based on the practical consequences perceived by the majority of jurists, in contrast to some perceived legal logic. He argues that judges are not especially well equipped to deal with national-security issues. Civil libertarians may take issue, but readers on all sides will appreciate Posner's outspokenness. Vernon Ford
Copyright © American Library Association. All rights reserved

Product Details

  • Series: Inalienable Rights
  • Hardcover: 208 pages
  • Publisher: Oxford University Press, USA; 1ST edition (September 1, 2006)
  • Language: English
  • ISBN-10: 0195304276
  • ISBN-13: 978-0195304275
  • Product Dimensions: 8.3 x 6 x 0.8 inches
  • Shipping Weight: 11.2 ounces (View shipping rates and policies)
  • Average Customer Review: 3.7 out of 5 stars  See all reviews (19 customer reviews)
  • Amazon Best Sellers Rank: #738,652 in Books (See Top 100 in Books)

More About the Author

Richard A. Posner is a judge of the U.S. Court Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School. He is the author of numerous books, including Overcoming Law, a New York Times Book Review editors' choices for best book of 1995 and An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, one of Times' choices for Best Book of the Year in 1999 and a Los Angeles Times Book Prize Finalist, 2000.

Customer Reviews

Most Helpful Customer Reviews
50 of 62 people found the following review helpful
In this brief and provocative book, Judge Richard Posner, perhaps the most prolific legal writer alive and one of the most interesting, makes his case for the use by the U.S. government of exceptional measures against the ongoing threat of Islamic terrorism. We are at war, Posner says, and under wartime conditions, some constitutional rights can be temporarily suspended in order to defend the nation. As precedent, Posner harks back to some of President Lincoln's Civil War-era actions, which couldn't be justified under today's understanding of the Constitution.

Posner is not a blanket supporter of the Bush administration's legal views -- he argues that Guantanamo detainees should have specific, limited rights -- but in general, he comes down on the side of national security as opposed to the traditional notions of civil liberties.

Posner employs his usual mode of thinking, often to good effect. The Posnerian approach invariably involves balancing tests: How much liberty will be lost by authorizing this NSA surveillance or this form of interrogation, and, on the other hand, how likely is it that the measure will increase our security by helping us apprehend a terrorist or prevent a bombing? Posner recognizes that this is not economic analysis where variables can be inserted and a numerical answer will emerge. There are too many imponderables.

Posner is not afraid of imponderables, however. "We make pragmatic utility-maximizing decisions all the time without being able to quantify the costs and benefits of the alternatives among which we are choosing," he writes.
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25 of 32 people found the following review helpful
4.0 out of 5 stars Insightful, biased, brilliant, shrill - Posner! September 27, 2006
Format:Hardcover|Verified Purchase
Richard Posner is perhaps best known for his work on the economic analysis of law (his text by that name is the standard for the discipline). His work on catastrophic risk, which forms the basis for his analysis in _Not a Suicide Pact_, draws heavily on the reasoning used in his work in the area of "law and economics."

This type of reasoning isn't everyone's cup of tea. It depends on weighing the costs and benefits of incremental changes in policy ("marginal costs" and "marginal benefits" in the jargon of economics), asking whether the expected benefits of Policy A outweigh the expected costs of implementing it, whether the possible costs of not implementing it justify going ahead with it. That wouldn't be so controversial an exercise if Posner weren't applying it to rights and security.

This book is short (158 pages of text) and not difficult for a layman to read and understand. Its bottom line is that improvements in national security may have a cost in terms of more narrowly defined rights, and conversely, more broadly defined rights may have a cost in terms of diminished security. He asks whether the costs of restricting rights might not be outweighed by the security benefits, and he concludes that they may be. He admits that those expected costs and benefits can't easily be measured (the entire exercise is dominated by "imponderables"), but he chooses to weigh them anyway in order to reach his conclusions.

While I don't agree with Posner's conclusions (I don't weigh the costs and benefits of restricting rights the same way he does), I think his analytical framework is a useful starting point for conversation on the issues raised by our war on terror.
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3 of 3 people found the following review helpful
3.0 out of 5 stars Timely, Important Topic but Poorly Executed May 24, 2010
By Jason
Format:Hardcover|Verified Purchase
Judge Posner's topic in this book is clearly timely and important. At the root of his inquiry lies an important issue: whether the definition and scope of civil liberties should remain constant through changing times. The judge's answer to that question is that they should not remain constant. Rather, what he calls civil liberties should have their definitions and scopes changed to reflect the changing times. Judge Posner's treatment is stylistically well-written and easy to read but his arguments felt underdeveloped and flimsy at times. The reason that I only gave this book three stars is because the judge's execution of his inquiry lacked in depth and in nuance. Thus, while it was a good, interesting treatment of a timely topic it fell short of the mark that I expected from this particular author.

My first objection to Judge Posner's treatment is his conflation of the concepts of privileges and of rights protected by the Constitution. Note I phrased the latter as "rights protected by the Constitution" and not "constitutional rights." Rather than recognize the substantial differences between rights and privileges, Judge Posner chooses to deal with them at a higher abstraction which obscures those differences. While privileges and rights can both be referred to collectively as "civil liberties," the author does violence to the distinctions between them when he deals with both of them as if they were identical. This is what Judge Posner does wrong when he argues for the ability of the government to redefine and alter the scope of "civil liberties." While the federal government is free to make those alterations to privileges, the very nature of a right prevents any government from making alterations to rights.
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Most Recent Customer Reviews
5.0 out of 5 stars A thorough and balanced review of Rights in a national emergency
The author has written a lively and thorough analysis of the place of individual "constitutional" rights in times of national emergencies, such as the "war" on... Read more
Published 9 months ago by J. Eaton
2.0 out of 5 stars The US Constitution is a Suicide Pact
This book, Not A Suicide pact - The constitution in a Time of National Emergency by Appellate Justice Richard A. Read more
Published on September 29, 2011 by Fredrick P. Wilson
5.0 out of 5 stars Not for the faint of heart...
To couch this review and Posner's argument, I paste a quote from Posner himself found the in The New Republic. Read more
Published on September 24, 2008 by Christopher M. Mcclelland
2.0 out of 5 stars I expected better from Posner....
In another, perhaps better world, Judge Posner would have been a Republican nominee for the Supreme Court. His age reputedly barred him in this one. Read more
Published on April 18, 2008 by Bertram Wooster
4.0 out of 5 stars Interesting introduction to constitutional law
As a layman I found Posner's book to be a very interesting way to learn about the issues with constitutional law not only in a time of crisis, but in general. Read more
Published on April 7, 2008 by Jeffrey Van Wagoner
4.0 out of 5 stars The Balance Between Liberty And Security
Federal Appeals Court Judge Richard A. Posner is known for being both prolific and controversial. In addition to authoring one of the most important academic treatises in the field... Read more
Published on November 19, 2007 by D. Mataconis
3.0 out of 5 stars A book of Habeaus Corpus
This is an intellectual approach towards whether or not we allow civilian rights to be infringed upon in times of crisis and what that allows, leading towards an almost... Read more
Published on September 3, 2007 by William D. Tompkins
1.0 out of 5 stars The Title Tells You Posner's Analysis is Rubbish
The bottom line is Posner's analysis lacks any historical basis or credibility. The "founding fathers" lived during an era much more perilous than "post 9/11" life in the United... Read more
Published on August 12, 2007 by Along Red River of the North
5.0 out of 5 stars National Safety Must Trump Civil Rights
The clash between individual civil rights and collective national security has never been far removed from American law and history. In NOT A SUICIDE PACT, judge Richard A. Read more
Published on February 11, 2007 by Martin Asiner
4.0 out of 5 stars Interesting introduction to the subject
I am an interested lay-person, but not a lawyer or constitutional scholar. Posner does a good job of walking the reader through his arguments for (and against) particular... Read more
Published on January 3, 2007 by A. Stockdale
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