Posner's newest book
Not a Suicide Pact: The Constitution in a Time of National Emergency

I don't have much patience for debate these days. I'll say only that it should be clear that Posner is willing to argue for such extreme measures only because he doesn't understand the logic of the rule of law. I'll repeat...:

Posner: "Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors."

...and repeat my response: No. Modern representative democracy is about acknowledging that we can never be certain who is ordinary, who is superior, whom we can trust, and under what circumstances we can trust them.

Posner is enamored of his own powers of reason. Whether others think those powers exist or not, especially if those others are hoi polloi, is of little consequence. By his own analogy -and only by analogy- Posner is a scientist and his rule is the rule of science. Brian Leiter uses the same logic to defend his status both as an academic philosopher and soi-disant leftist. Brian doesn't understand that his philosophy, a dream moving in sympathetic vibration with an absent scientist, is both pure delusion, literary false logic, and damaging to democracy.

If you define the world according to your speciality how easy is does it become to dismiss the opinions of others who do not share it? If the world exists outside of our perceptions, how can any man-made model of the world be so powerful as to render all other models obsolete? Individualism eats itself. How much does this differ from DeLong?
The rule of law is not a model of the world, it is a model for argument about it. The rule of science, the rule of scientists and priests of the analogy of science, defends not a model of argument but a unitary model of perception and experience. In a world of sense in which we communicate in language, there can be no unitary model of perception that is not authoritarian.
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Here's the entire post from 2004:

Posner:

Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.
If this analysis is sound, then we see that the statement that “Modernity has a secular self-understanding that tends to deny religious doctrine a role in political justification” depends on whether modernity is equated with the dominance of the secular. The statement is thus entirely circular.

In this country the english language is the language of record in a court of law. You may not argue a point in latin and then demand it not be translated. You can not argue from canon law or the logic of the wergeld and expect to win a case. If you want to make a case for a position that for yourself is based on religious doctrine, you must be able to translate, or transliterate, that argument into one that someone of another doctrine may come to understand and with which s/he may be willing to agree. This country is based on an ideal of secular politics for this reason alone, that of communication amongst doctrines; catholics arguing with Jews about Baptists. It's that simple.
Where the fuck are we, third grade?

I am not an agnostic, if by that is meant (and this is the sense I have of the term, though it may be an idiosyncratic sense) someone who is perplexed as to whether or not there is a God; who regards this as an interesting question to which he happens not to have the answer. I am someone who simply doesn't feel the presence of God in my life. That I think is the typical state of the nonreligious person, and corresponds to what I assume is the feeling of a eunuch about sex. The eunuch knows that sex is important to many people, but he doesn't have any feeling of that importance. Sex doesn't exist for him.  God doesn't exist for me. That doesn't mean that He doesn't exist. My understanding of Nietzsche's dictum that "God is dead" is not that it is a metaphysical statement, a statement of atheist doctrine, but that it is a statement that God is as if dead, to educated Europeans of Nietzsche's era. I think that whether or not God is dead for one depends on upbringing and temperament, but not on arguments.

Two things in response. One is that the I made the same argument about Nietzsche in a paper I wrote for Marcia Cavell. She practically yelled her notes at me. "Nietzsche was an atheist!" She gave me a 'D' and I dropped the class. She was an idiot, or hadn't read the books in years. Needless to say, Posner is right, but he still misses the point. His arguments rest on metaphysical principles as much as anyone's, and much more so than my own.
When I was young, in my early teens, I spent some time trying to figure out the common denominator, the ground, for my definition of justice, the sort of metaphysic of value that would pass whatever sort of test I would want to throw at it. Posner, in his 'realism' has chosen for himself some sort of ideal of the conflicts of the marketplace. I've always thought of the market as an inevitable, even necessary, vulgarism, but I would never use it as a model for the good. A right to property is not primary, since the right to a limited resource is too easily opposed. I decided against speech as a value in itself since the right either to scare or bore people also has its limits, but I ended up with its converse, the right to listen: The right to be curious.
More later maybe. I'm tired and I'm covered in dust.
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