Liberty v. Security

A Review of the Posner- Balkin debate


I had the good fortune of listening to the Posner – Balkin debate on the above topic online and must say certain very interesting questions have arisen from it. The debate may be heard/ seen online here and before I proceed on certain important aspects about the debate, I’d like to give a brief about the speakers.

Jack Balkin is a Professor of Constitutional Law at the Yale Law School.

Eric Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School.


While the dialogue extended to various aspects of liberty and national security, below si my own review of what the two luminaries talked about civil liberties.

Eric Posner comes up with this ‘strangely interesting’ argument at the start of his debate the Executive is in the best position to judge an emergency and thus take further actions to tackle the situation at hand. He puts a lot of faith in the Government process and argues that the creation of rights is a political process and may be curbed when required. His faith extends to the fact that he denies any intentional misuse of such power by the Government. An analogy that he draws is We give the police guns as an example of power granted and not that is abused. Even if we agree with this argument in theory, it surely is flawed in light of incidents like Guantanamo and Abu Gharib and I don’t think Posner would mean that such abuses were still required and right by the Executive. 

Another definitive counter was given by a commentator Praedor stating

“Rights are NOT a service the government provides. They are not something that the government allows. They are inviolate and are what the government serves. The Constitution and Bill of Rights isn’t about giving government power, it is all about limiting the government’s power in the Founding Documents. These documents are not limits of what the people can do, but rather documents that strictly limit what government can do…and you cannot simply legislate rights away. ALL attempts to do so are, by definition, unconstitutional.”

While Eric takes this belligerent approach in his argument Balkin looks at rights from a wholly different perspective. He argues that civil liberties is always considered to be a moving target and with time the protection of individuals will only increase. It is not possible to comprehend a situation where in human existence and the protection of rights would be the same as were 3 centuries ago. Civil liberties also play an important role in producing the structure of governance that we have unlike Posner who called its existence a ‘political process’.

The debate deals with vivid aspects of the National Security State, surveillance and the protection of rights, more importantly the right to privacy. Towards the end, the debate turns a bit political in the sense that they look at the Bush administration’s competence as a stable executive and draw comparisons to the era of Nixon and Kennedy in the cold war.

I found this dialogue very informative and recommend it to all my readers. I would also recommend Posner’s article ‘The credible executive’ to further understand the views presented in the dialogue.