Inefficient Breach

My view of Richard Posner has changed dramatically after reading his book, Not a Suicide Pact, which is about how we should interpret the Constitution to combat terrorism.
I'd never read anything by Posner about Constitutional law, and in the past I've generally agreed with his decisions that courts should try to achieve the most efficient outcome.

I don't think achieving the most efficient outcome is the proper goal of interpreting the Constitution though. It's a text designed to protect people, even if the outcome turns out to be the more efficient one. Yet Posner's argument centers on balancing liberty and security from terrorists. His goal is to find the margin at which a small sacrifice in liberty will create an equal increase in security. After addressing the ability of each branch to calculate the costs and benefits, he ends up deciding that judges are best able to make such calculations.

Some particularly disturbing lines:
"So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than tw centuries after it was written."

"Ex Parte Milligan was decided in 1866. The idea that a case almost a century and half old should guide us in dealing with al-Qaeda is ridiculous."

"Far more dangerous is the resistance of business, in the name of property rights and free markets...Property rights can block national security measures as mischievously as rights of liberty and privacy can."


But even assuming that an efficient outcome of security and liberty is a proper goal, the Constitution intentionally makes sure that it's not political actors who are doing these calculations. Politicians tend to gain more power and can justify more taxes the greater the perceived national security. Hence, the Constitution makes sure liberties are taken out of the political process because we shouldn't trust elected officials to strike the right balance.

I've now realized that Posner is no originalist, and that even though he may often come to the same conclusions as actual originalists, it's not because he feels bound by the text in any meaningful sense. Long live formalism.