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. Yet, the author simply ignores these differences without any explanation.



My other primary objection to Judge Posner's treatment is the lack of robustness in his arguments. Some of the arguments were logical and seemed well thought-through. Those were a pleasure to read, even when I disagreed with them. However, there were many situations where Judge Posner seems to make conclusory statements without much, if any, analysis. For example, on page 10, the judge argues in three sentences that the need for judicial intervention is lessened when the President and Congress agree. In that argument, the coup de grace was his statement that the Congress under the Republican Party was not simply a rubber-stamp for President Bush's policies. Similarly, on page 70 Judge Posner argues in five sentences that the Constitution implicitly grants essentially dictatorial powers to the President to prosecute a war because of a "law of necessity." In fact, this theme reappears several times when the author argues that it would be better to deny the President certain powers and then to have him exercise those powers in contravention of law than to grant him the powers and explain the limits on those powers. The author even argues that an "extralegal approach to the exercise of emergency powers" is an attractive alternative in emergency situations to delineating powers with which the government actors must comport. Coupled with, and magnifying, these rhetorical difficulties is the author's decision not to provide citations for his statements, instead relying on a bare bibliography at the end. The lack of footnotes or endnotes handicaps the reader from easily being able to fill in the gaps in the author's reasoning in the text.



Unfortunately, Judge Posner's book does not live up to the quality expected of his writing, especially when the topic is so controversial as this one. The flimsy foundations and unsupported conclusions of some of his arguments did his position a major disservice. The book actually felt like it was rushed and that if Judge Posner had spent more time elucidating his arguments and supporting them with at least endnotes, they would have been more persuasive. As it stands, this book is a better insight into Judge Posner's personal thoughts and feelings on the question of whether the federal government should be constrained by law during a time of national crisis than it is a decent treatment on the topic.