THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. Not Suicide-A Pact

Through the Fall of 2006 and into the summer of this year on-lookers of the American Constitutional debate have gnawed away at Not a Suicide Pact, in an act of faith, searching for some sign of a sense of coherence and intellectual integrity that had to, just had to, be burning somewhere under its surface -- surely, somewhere, somewhere in Suicide, the rash, rude, clever, prolific, privileged, jurisprude Posner, had set to burning some flicker of twinkling insight.

Through the months, Suicide at hand, we whipped back to Holmes and then forward through the pragmatists and then sought some kind of refuge even farther back in the words of the Framers, trying to dissect out some tiny sense of theme or consistency. We knew that Posner, the profiled American federal appellate Court judge and academic could never, on principle, risk to disappoint in a matter of integrity.

Those months of Fall and Winter and Spring have been a lonely time.

Trade reviews and publishers’ blurbs alone, even with the witty depredations of this non-suicidal work on one thinking persons’ blog site or another were nothing at all blank out that silence.

Fortunately, albeit later rather than sooner, signs of scholarly enterprise have now appeared.

Professor Cole’s substantial contribution to analysis of Posner’s assertedly non-suicidal work is to demonstrate that the judge’s words are entirely devoid of cognition that -- whatever pragmatism might say of how legal decisions are made -- the constitution that he wants to bend into pretzels is not just an instrument of his convenience. It is founded on consensus, not as to outcome, but as to how outcomes should be reached.

Cole’s review says, “In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others”

Setting aside the fact that I have tried to read between and around the lines of this learned judge’s approach for months and have found no sense of understanding of any kind of consensus or any sense of a spirit of the constitution at all, I am grateful that Professor Cole’s intellect and skills have allowed him to tease out and highlight the Constitution’s essentiality as one of pre-commitment. (I am grateful too to Professor Cole for the idea of “pre-commitment,” itself as a noun, in the context of this debate.)

Cole amply although courteously sees what is happening in this suicidal work and for this I am and no doubt other labourers in this unfertile garden for so many months are grateful.

“Posner, Cole says, “… prefers to resolve the question by the ad hoc weighing of imponderables,” and Posner “…ignores this line of cases…” and Posner “… simply announces constitutional conclusions without any attempt to defend them through cost-benefit (or indeed any other) analysis.” And yet in another place he cites : “…[Posner’s] open-ended balancing approach that [Posner] admits ultimately involves weighing imponderables.”

Cole’s ability to isolate and rationalize the component of pre-commitment, as the central organizing principle of the constitutional enterprise itself, not to mention his identification of the existential absence of the idea in any way, in Suicide, is the key to his identification of the bankruptcy of this suicidal work.

Cole’s review, and perhaps Cole himself, suffers from this one fundamental flaw itself. He is – apparently – too much of a gentleman or an academic -- to allow himself to make the one final basic observation which the Suicidal work deserves: with respect, this book is a crock.

The remaining complaint respecting Professor Cole’s work aside from his gentlemanliness to a fault, is his sense of timing. The next time, please, perhaps he could be a little quicker off the mark.