and 2012: The World Doesn’t Love the First Amendment.
Jack Balkin: Vermeule and Posner Defend the Torture Memo
In effect, Vermeule and Posner argue that government officials need not follow existing law if it conflicts with the academic theories of a "dynamic" new generation of legal scholars. They argue that critics of the torture memo "have a distinct methodological valence, one with intellectually partisan overtones." But it seems to me that the OLC's memo better fits this description.Posner, Vermeule, etc.
Much as I respect Vermeule and Posner's other work, I must confess that I'm deeply worried about the abdication of moral responsibility in this op-ed, as well as its cavalier assumption that the purpose of the OLC is to push a particular ideological agenda heedless of any larger responsibilities to the Nation as a whole. The notion that government officials can simply discard relevant precedent if it gets in the way of ideology is inconsistent with the basic obligations of government lawyers. Is this truly, as Vermeule and Posner tell us, characteristic of the next generation of constitutional scholarship? I shudder at the thought.