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Law, Pragmatism, and Democracy by Richard A. Posner (Harvard University Press, 398 pages, $35) It is a somewhat humbling task to review the latest (though probably not for long) book by 7th Circuit Judge Richard A. Posner. In Law, Pragmatism, and Democracy, Posner offers an impressive defense of democracy as practiced in the United States, makes a persuasive — but not always compelling — case for legal pragmatism, and applies his views to pressing contemporary legal questions, including the war on terrorism. As always, his book is thoroughly researched and gracefully written. Indeed, perhaps the best a reviewer can do, especially in a short space, is keep score. Justice John Marshall receives praise for his pragmatic approach to constitutional interpretation. John Dewey’s views on pragmatism and democracy fare well, though not as well as those of Joseph Schumpeter, the Austrian economist who migrated to the United States in the 1930s. Critics of the war on terrorism make valid points, but do not merit deference. As only the president has access to all of the relevant information necessary to coordinate the government’s response, Posner argues, he should have sole responsibility for this program. With respect to the judiciary, Posner contrasts legal pragmatism with formalism. The former, he writes, is characterized by “a disposition to ground policy judgments on fact and consequences rather than on conceptualisms and generalities.” Reasonableness, rather than precedent, is the controlling criterion in pragmatic adjudication. Its adherents, according to Posner, include some of the most celebrated Supreme Court justices, including John Marshall, Oliver Wendell Holmes Jr., Benjamin Cardozo, and Learned Hand. Not incidentally, Posner notes, each justice is known for “rhetorical prowess.” In a more-detailed discussion of Marshall, Posner credits his freedom from a particular jurisprudence and embrace of a results-oriented jurisprudence with promoting a co-equal role for the Supreme Court in the federal government and protecting the strong national government permitted by the Constitution. By pursuing these goals “unremittingly and at times disingenuously,” Marshall earns Posner’s praise. That is because Marshall ensured that, in the uncertain period after the Constitution was adopted, the United States did not collapse back into the “loose confederation of nations established by the Articles of Confederation.” To be precise, Posner situates his praise of Marshall in the context of the new nation and a developing legal system; in a mature legal system, Posner notes, such innovation is less necessary, and a formalistic approach is sufficient to resolve most, if not all, cases. Posner devotes more than a chapter to John Dewey, and commends Dewey’s views on democracy as a form of inquiry and decision making. Under Dewey’s approach, according to Posner, “[k]nowledge is not produced mechanically by the repeated application of algorithmic procedures by expert investigators all trained the same way”; instead, “[i]t is produced by the tug of communal demands, the struggle between doubt and habit, the strivings of individuals of diverse background, aptitude, training, and experience, and the application of methods of inquiry, such as imagination and intuition, that owe little to expert training.” Posner is not persuaded by Dewey’s efforts to carry over this set of views to the political realm, however. Quite simply, Posner does not believe that deliberative democracy is the best form of democracy, and even questions whether deliberation is necessary for democracy to be effective. Here, Posner embraces the views of Joseph Schumpeter, author of Capitalism, Socialism, and Democracy. Related to his views on the advantages of the market economy, Schumpeter envisions democracy, according to Posner, as essentially “rule by officials who are . . . chosen by the people and who if they don’t perform to expectations are fired by the people at the end of a . . . limited term of office.” When it comes to applying his views to the war on terrorism, Posner acknowledges that some critics have valid points as to how the government should conduct this campaign. Ultimately, however, Posner argues that only the president has the ability — due to his unrivaled access to all of the relevant information — to effectively manage the government’s efforts. Accordingly, only the president should have responsibility for government action in this area. As precedent for the current war on terrorism, Korematsu v. United States, the Supreme Court decision in World War II upholding the government’s exclusion of “persons of Japanese ancestry from the west coast . . . even if they were U.S. citizens,” is defended, though not persuasively. Posner acknowledges that racial prejudice was a “significant motivation” for the order upheld in Korematsu and does no more than recite the flimsy evidence (the reported refusal to swear allegiance to the United States) cited to support the order at the time, but nevertheless insists that the Court correctly held that the Constitution’s prohibition against discrimination may be suspended in times of crisis. As we now know that the order was motivated by racial prejudice and that its reasoning was infirm, Korematsu is hardly compelling precedent for the government’s actions today. It is quite likely that this brief commentary may provide the strongest ammunition to Posner’s critics. More generally, as Posner acknowledges, the case for pragmatism risks defending as a matter of default what is as the best we can do. For example, he cites Brown v. Board of Education as an example of legal pragmatism, insisting that “[h]ad formalists dominated the Supreme Court in the 1950s, Brown [] would have been decided in favor of continuing to allow ‘separate but equal’ public school education.” At the same time, he praises the Supreme Court for refusing to consider the constitutionality of statutes forbidding miscegenation shortly after Brown was decided on the grounds that a decision outlawing such statutes “would have been one judicial bombshell too many.” For how long is unconstitutional discrimination to be tolerated on the basis of a “pragmatic” insistence that the majority’s unwillingness to change renders judicial intervention to enforce the Constitution too risky to pursue? Such reasoning poses the risk that the majority would seek to maintain the current situation in perpetuity, and the pragmatic justification for inaction could become a self-fulfilling prophecy. Posner is to be admired for his willingness to acknowledge the limits of a rigid, formalistic approach to law, and for his assertion that in a nation as diverse as the United States all of us benefit from a heterogeneous judiciary. In the period since Posner completed this book, the government’s war on terrorism has received more criticism than it did in, say, the first year after Sept. 11, 2001. Only time will tell if the critics are correct. Even — especially — such an ardent proponent of pragmatism as Posner would have to agree. Rodger D. Citron is an attorney in Washington, D.C.

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