Month: November 2005

Where’s the Outrage?

Yesterday I filled my car’s fuel tank at a price of $2.299 per gallon. Some 35 years earlier I was able to fill up at a price of $0.299 per gallon. Adjusted for inflation, yesterday’s price was about $1 per gallon higher than the price I paid 35 years ago.

Should I be outraged? At what? At the fact that a particular type of product now costs more (in real terms) than it did 35 years ago?

If that should outrage me, then I should be overjoyed by the fact that the car I drive now is vastly superior to the one I drove 35 years ago. In fact, my present car, even though it’s a moderately priced and popular Japanese make, is vastly superior to almost any car I could have bought at any price 35 years ago. But I’m no more overjoyed by the fact that I can now own an excellent car than I am outraged by that fact that it costs more to fuel that car than it would have cost 35 years ago.

Nor am I overjoyed by the many other products that I enjoy today that are superior to — and less expensive (in real terms) — than their counterparts of 35 years ago, or by the many other products that weren’t even available to me 35 years ago, or by the many services that weren’t available to me 35 years ago.

I’m neither outraged by higher gasoline prices nor overjoyed by a plethora of better, cheaper goods and services because they’re simply what I would expect in a dynamic economy based on (relatively) free markets. Such an economy continuously yields better products and services, and competition pushes the prices of those products and services down over time. But not everything gets better, and not all prices go down. The beauty of free markets, however, is that better, less-expensive products and services arise to push aside their inferior, more costly predecessors.

I can’t predict what will arise to replace gasoline and the kinds of automobiles that are powered by gasoline. But I can predict that if government will stand out of the way, our dynamic economy will produce such alternatives.

Roger Scruton at Right Reason

Max Goss of Right Reason interviews the noted English conservative Roger Scruton. I first became aware of Scruton almost twenty years ago when I bought and read avidly his wickedly incisive collection of essays entitled Untimely Tracts. He made his “name” with The Meaning of Conservatism, a book that I have placed on my must-read list.

At any rate, I strongly recommend that you read Goss’s interview of Scruton, of which Part I appears today. There’s so much that’s quotable, but I’ll restrain myself and quote only this trenchant paragraph:

It is part of the blindness of the left-wing worldview that it cannot perceive authority but only power. People who think of conservatism as oppressive and dictatorial have some deviant example in mind, such as fascism, or Tsarist autocracy. I would offer in the place of such examples the ordinary life of European and American communities as described by 19th century novelists. In those communities all kinds of people had authority — teachers, pastors, judges, heads of local societies, and so on. But only some of them had power, and almost none of them were either able or willing to oppress their fellows.

Privacy, Autonomy, and Responsibility

In a recent post I addressed portions of Judge Raymond Randolph‘s speech to the Federalist Society’s National Lawyer’s Convention on November 11. I focused on Judge Randolph’s too-ready dismissal of all forms of substantive due process. In particular, I defended the substantive due process of Lochner (1905) and its progeny, which enforced the Constitution’s explicit guarantee of liberty of contract.

But, as I wrote in that same post, “[i]n a single year (1934) the Supreme Court demolished liberty of contract and created out of whole cloth what amounts to an unlimited “police power” for the States — liberty and property be damned.” Police powers traditionally extend to public safety, health, welfare, and morals. Morals had to go when the “Age of Aquarius” dawned in the 1960s. Thereupon, the Supreme Court felt compelled to concoct (in Griswold v. Connecticut [1965]) a general right to privacy (not to be found or implied in the Constitution), with which it began to strike down — as a matter of substantive due process — certain legislation bearing on morals, most notably in Roe v. Wade (1973, abortion) and Lawrence v. Texas (2003, homosexual sodomy).

This post focuses on Judge Randolph’s remarks about the concocted general right to privacy:

As Judge [Henry] Friendly anticipated [in an unpublished opinion drafted three years] before Roe v. Wade, and as many critics of [Roe v. Wade] have noted since, it is exceedingly difficult to see abortion as a right of privacy, even if such a right might be found in the Due Process Clause. Privacy deals with preserving seclusion, or with keeping personal information secret.

Although the Constitution does not use the term “privacy,” it is fair to say . . . that portions of First, Fourth Amendment and Fifth Amendments deal in certain, specific ways with protecting seclusion and secrecy. This still leaves the question why abortion is a right of privacy. Among its many faults, the opinion in Roe v. Wade never even attempted to supply an answer.

Over the years many people, lawyers and non-lawyers alike, have come around to Judge Friendly’s view that abortion is not about privacy. Only last month, Richard Cohen, a thoughtful columnist for the Washington Post who does not oppose abortion, wrote that the “very basis of” the Roe decision now “strikes many people as faintly ridiculous.” He continued: “As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.” [Oct. 20, 2005 column]

The Court itself may have entertained similar doubts. In cases after Roe, a subtle change took place. The Court began stressing that the privacy involved was a woman’s “private decision” to have an abortion, with the Court often italicizing the word “decision.” But this explanation could not hold for long. It was not the decision to have an abortion that was at stake in Roe. It was the carrying out of that decision. People make all kinds of decisions in private. One person may privately decide to rob a bank. Another may decide in private to smoke crack cocaine. Someone else may decide to commit suicide, or to give a speech. That the decision is made in private says nothing about whether the person is exercising a constitutional right in carrying out the decision.

Precisely. As I wrote here:

Privacy, to the extent that it exists as right, cannot be a general right. . . . If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home. . . .

The Supreme Court conveniently discovered a general right to privacy for the purpose of granting certain specific “rights” that it had somehow failed to recognize for nearly two centuries, overriding long-standing legislation in the process. From there, the Court went on to enshrine a peculiar conception of liberty, namely, autonomy without responsibility. Judge Randolph explains:

Maybe the Court realized as much [about the distinction between private decisions and the actions that follow them]. For whatever reason, the right of privacy, as first conceived [in] Griswold, no longer drives the Supreme Court in substantive Due Process cases, even in those involving abortion. In more than a decade, the Court has not decided a single case on the basis of a general right of privacy. Little appreciated, lost in the rhetoric of privacy, a transformation has occurred. Griswold and Roe have morphed.

Griswold’s zone of privacy for married couples and Roe’s right of privacy for women in matters of abortion have become everyone’s right to do as he or she pleases so long as there is no harm to others. This is the principle of John Stuart Mill and Herbert Spencer, a principle Judge Friendly rejected, as had Justice Holmes in his Lochner dissent. . . .

. . . The Court majority [in the mid-1980s] began framing the constitutional right involved in Roe not simply in terms of a private decision but in terms of “individual dignity and autonomy.” Planned Parenthood v. Casey, handed down in 1992, was the watershed. The joint opinion of Justices O’Connor, Kennedy and Souter described Roe as resting on a “rule (whether or not mistaken) of personal autonomy and bodily integrity . . . .” The opinion repeated several other times that “personal dignity and autonomy” were “central to the liberty protected by the Fourteenth Amendment” Justice Blackmun, in his concurring opinion, picked up on the theme. He re-framed his opinion in Roe as one resting on “decisional autonomy.”

Some thought the 1997 decision in Washington v. Glucksberg, the case rejecting a constitutional right to assisted suicide, put an end to the personal autonomy rationale. The Court rejected the idea that just because many of the rights protected under the Due Process Clause could be characterized as sounding in personal autonomy, “any and all important, intimate, and personal decisions are so protected.” Rather, any new Due Process right of this sort had to be firmly rooted in this country’s history and traditions. This at least gave the appearance – and the hope – that, in the guise of due process, the Court was not simply making it up.

But two years ago the Court turned its face from Glucksberg. Texas had a law making homosexual sodomy a Class C misdemeanor, a traffic ticket, punishable by a fine only. The Supreme Court’s opinion in Lawrence v. Texas held that the Texas law violated the Due Process Clause. The Court therefore overruled Bowers v. Hardwick, thus adding to the long list of cases the Supreme Court has overruled. Lawrence not only tossed out the analytical framework of Glucksberg, it contradicted a host of other precedents dealing with the States’ police power, precedents dating back to the 1800’s. The Congressional Research Service, by the way, reports that through the October 2003 Term, the Supreme Court has overruled 324 of its past decisions, in whole or in part. So much for stare decisis.

Without mentioning Glucksberg or any of its state police power cases, Lawrence created a new constitutional right to engage in homosexual sodomy, at least if this were not done in a public square. Autonomy was back. Lawrence is full of rhetoric having only a remote connection to the facts of the case, and no clear connection to anything in the Constitution. After quoting the autonomy language of Casey, the Lawrence Court said this: “Liberty presumes an autonomy of self” and the “instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.” . . .

The . . . Lawrence opinion confirms Judge Friendly’s insight into the true nature of controversies of this sort. The “general rule,” the Lawrence Court wrote, is “against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person . . . ” This is John Stuart Mill writ large. The Court repeated the same theme later in its opinion, emphasizing that the case did not “involve persons who might be injured or coerced” – a statement nicely blending Mill’s no-harm-to-others principle with Herbert Spencer’s Social Statics. . . .

Judge Friendly wrote in his draft that the 14th Amendment did not enact Mill’s On Liberty. Lawrence v. Texas ruled otherwise. . . . To suppose that the 14th Amendment incorporated Mill’s principle, one would have to believe that at the same time Congress was telling Utah to abolish polygamy, it was sponsoring an amendment that would make any such state law unconstitutional. . . .

Among the Court’s failings in Lawrence was its inability to see, or if it saw, to admit, the many problems Mill’s principle raises. What kind of harm to others should be recognized? Why should a legislature be forbidden from legislating on the basis of morality? Is that even possible? . . .

When Mill talked about the absence of harm to others, and when the Supreme Court did the same in Lawrence, who exactly are the “others” they have in mind? The Court assumes that the “others” are only those living now. But what of the unborn and the generations that will follow us? They will be affected by the society we leave behind. I know of no principled reason to exclude them from consideration, even if Mill’s principle reflected constitutional law. And neither did Judge Friendly. . . . [A]fter stating the Mill principle, the Judge confronted it on its own terms. He wrote that even if the harm principle were constitutional law, the State had made a rational judgment in treating the fetus as an “other” worthy of protection. . . .

Mill’s principle, and the Court’s adoption of it, moves in the direction of radical autonomy. Some on the left, and some libertarians, welcome this. The Lawrence Court denied that it was imposing its own moral code. But autonomy is itself a moral value and it is one that tends to crowd out other values. As Jennings and Gaylin point out in their book The Perversion of Autonomy, “[a]utonomy now preempts civility, altruism, paternalism, beneficence, community, mutual aid, and other moral values that essentially tell a person to set aside his own interests in favor of the interests of other people” or the good of the community. . . .

The Lawrence Court never even acknowledged its countless decisions, dating back to the 1800’s, which held that a State’s power to regulate – its police power – extended not only to the health, safety, and welfare of its citizens, but also to matters of morality. Even Lochner recognized this. Yet the Lawrence Court, ignoring this huge body of precedent, declared: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .”

. . . Throughout the country, in case after case, Lawrence and the reformulated Griswold and Roe are now being used in efforts to strike down a vast array of laws, some with deep historical roots. Lawrence is invoked in suits seeking to force states to recognize homosexual marriage. It is used as a defense to obscenity prosecutions; and to attack laws against pedophelia; adoption of children by homosexuals; prostitution; polygamy; sex offender registration; statutory rape; and the military’s don’t-ask-don’t-tell policy. A note in the Harvard Law Review plausibly relies on Lawrence to argue that there is a constitutional right to use marijuana for medicinal purposes. And a law professor has written a lengthy article using Lawrence to claim that laws outlawing consensual sex between a teacher and student in a state university are invalid under the Due Process Clause. Most of these efforts have not been successful – yet. But where it will lead is anyone’s guess.

The joint opinion in Casey, in a sentence the majority opinion in Lawrence adopted, wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Judge Bork had this comment:

“This is not an argument but a Sixties oration. It has no discernible intellectual content; it does not even tell us why the right to define one’s own concept of ‘meaning’ includes a right to abortion or homosexual sodomy but not a right to incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity and autonomy.”

There is a lot more to liberty than personal autonomy, as I will explain in a future post. Liberty, for real people living in the real world, bears no resemblance to the sterile dogmas of libertarian philosophers or to the “anything goes” blandishments of pseudo-anarchists.

Related posts:

I’ve Changed My Mind (08/15/04)
Next Stop, Legal Genocide? (09/05/04)
Here’s Something All Libertarians Can Agree On
(09/10/04)
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Creeping Euthanasia (09/21/04)
PETA, NARAL, and Roe v. Wade (11/17/04)
Flooding the Moral Low Ground (11/19/04)
The Beginning of the End? (11/21/04)
Peter Singer’s Fallacy (11/26/04)
Notes on the State of Liberty in American Law (01/01/05)
Taking Exception (03/01/05)
Protecting Your Civil Liberties
(03/22/05)
Where Conservatism and (Sensible) Libertarianism Come Together (04/14/05)
Conservatism, Libertarianism, and Public Morality (04/25/25)
The Threat of the Anti-Theocracy (05/03/05)
The Consequences of Roe v. Wade (06/08/05)
The Old Eugenics in a New Guise (07/14/05)
The Left, Abortion, and Adolescence (07/21/05)
Law, Liberty, and Abortion (10/31/05)
Don’t Just Take My Word For It (11/07/05)
Abortion and the Slippery Slope (11/20/05)

The Cynics Debate While Babies Die

UPDATED BELOW

Sanford Levinson and Jack Balkin smugly “debate” Roe v. Wade as the TimesOnline reports on babies who survive abortion attempts (emphasis added by me):

A GOVERNMENT agency is launching an inquiry into doctors’ reports that up to 50 babies a year are born alive [in the UK] after botched National Health Service abortions. . . .

The Royal College of Obstetricians and Gynaecologists, which regulates methods of abortion, has also mounted its own investigation.

Its guidelines say that babies aborted after more than 21 weeks and six days of gestation should have their hearts stopped by an injection of potassium chloride before being delivered. In practice, few doctors are willing or able to perform the delicate procedure.

For the abortion of younger foetuses, labour is induced by drugs in the expectation that the infant will not survive the birth process. Guidelines say that doctors should ensure that the drugs they use prevent such babies being alive at birth.

In practice, according to Stuart Campbell, former professor of obstetrics and gynaecology at St George’s hospital, London, a number do survive.

“They can be born breathing and crying at 19 weeks’ gestation,” he said. “I am not anti-abortion, but as far as I am concerned this is sub-standard medicine.” [Sub-standard because the abortions are botched, that is: ED.]

The number of terminations carried out in the 18th week of pregnancy or later has risen from 5,166 in 1994 to 7,432 last year. Prenatal diagnosis for conditions such as Down’s syndrome is increasing and foetuses with the condition are routinely aborted, even though many might be capable of leading fulfilling lives. . . .

“If a baby is born alive following a failed abortion and then dies (because of lack of care), you could potentially be charged with murder,” said Shantala Vadeyar, a consultant obstetrician at South Manchester University Hospitals NHS Trust, who led the study. [And in a civilized society you would be charged with murder for carrying out an abortion: ED.] . . . .

The issue will be highlighted by Gianna Jessen, 28, who survived an attempt to abort her. She is to speak at a parliamentary meeting on December 6 organised by the Alive and Kicking campaign, which is lobbying for a reduction of the abortion limit to 18 weeks.

Jessen, a musician from Nashville, Tennessee, was left with cerebral palsy but is to run in the London marathon next April to raise funds for fellow sufferers.

“If abortion is about women’s rights, then what were my rights?” she asked.

“If people are going to talk about abortion, then it’s important for them to know that these are babies that can be born alive and survive.”

Lizards like Levinson and Balkin don’t seem to care about the gruesomeness of abortion or the lives it takes. Their only concern is with how to use the abortion issue to put more Democrats in office. Thus Levinson opens the so-called debate by condescending to working-class Republicans, whom he cannot imagine as proponents of economic liberty and opponents of the welfare state, and impugning the motives of anti-abortion Republican politicians:

. . . I have often referred to Roe as “the gift that keeps on giving” inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a “right to life.”

Why do I say “pander”? The reason is simple: Most (though certainly not all) Republicans, including, quite possibly, both Presidents Bush, are absolutely cynical in their professed regard for the “right to life.” The expression of such a regard is a good vote-getter, but professional politicians are well aware that most of the country in fact supports the clumsy compromises stumbled into over the past 30 years, largely through the aegis of Sandra Day O’Connor. I am convinced that the last thing that Karl Rove desires is the return of abortion to the unfettered world of politics, where the Republican Party would actually have to take responsibility for defining policies regarding reproductive choice instead of being able to posture in the knowledge that the Supreme Court will invalidate many, perhaps most, egregious limits on choice. (Why do you think, for example, that President Bush, who is eager to embrace the pernicious proposal to constitutionalize a view of marriage as uniquely heterosexual, has totally failed to support any proposal to overturn Roe by amendment?)

And Balkin agrees. The Levinson-Balkin “debate” has nothing to do with the wrongness of Roe v. Wade or abortion (both of them support it) and everything to do with how Democrats might gain if Roe v. Wade were overturned.

As for Levinson’s “evidence” that Bush & Co. use the abortion issue cynically, Bush knows two things about Roe: (1) It can be vitiated, if not overturned, by a Supreme Court that’s in the right hands (which is where it seems to be headed). (2) Abortion is “popular” — relative to homosexual marriage — so a proposed anti-abortion amendment is unlikely to go very far and, therefore, is likely to be unnecessarily divisive. Levinson is surely bright enough to have grasped both points, but not honest enough to acknowledge them. Moreover, Levinson surely knows that Bush’s anti-abortion stance is based on strongly held religious views — views about which Levinson probably scoffs privately. The cynic is Levinson, not Bush.

(Thanks to my daughter-in-law for the link to the TimesOnline story.)

UPDATE: A post by Leon H at RedState.org recounts the many gruesome and painful ways in which abortions are accomplished:

Today, Virginia Governor Mark Warner (D) granted clemency to Robin Leavitt, thus saving him from the death penalty. This is front-page news because Levitt would have been the 1,000th person legally executed in the United States since the death penalty was reinstated in 1976, a period of almost 30 years….

Today, this very day, approximately 3,013 unborn children were killed. Since 1976, approximately 38 million unborn children have been killed. Nearly all of them have had their own heartbeats. Most have had fully formed (if undeveloped) organ systems. Many of them have felt pain, and some of them have surely been conscious. By “some,” I mean a number several orders of magnitude larger than 999.

None of them had an opportunity to make a defense to a jury of their peers. None of them were provided a lawyer if they could not afford one – which is irrelevant, because there were no trials. No appellate review for the decision to end their life was available. Even those that were conscious were given no effective warning of their death sentence at all.

They were put to death by methods that would shock the conscience of the most calloused observer – Potassium Chloride shots to the heart, suction devices designed to pulverize the fetus into pieces, cut into pieces with knives and sucked out of the womb (D & C), dismemberment by forceps, saline poisoning (usually taking more than an hour), or scissors through the back of the skull.

Substantive Due Process, Liberty of Contract, and States’ "Police Power"

Judge Raymond Randolph, in a speech to the Federalist Society’s National Lawyer’s Convention on November 11, discussed Judge Henry Friendly’s draft opinion in a suit challenging New York’s abortion prohibition in 1970. (Thanks to Orin Kerr of The Volokh Conspiracy for the link.) To quote Juan Non-Volokh of the Conspiracy, Judge Friendly’s opinion

was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly’s clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power — and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Aside from that, Randolph had much to say about substantive due process, privacy, and a Court that has lost sight of the Constitution in its zeal to attain certain results. In this post I’ll address Randolph’s take on substantive due process:

. . . Substantive due process is the idea that the Due Process Clause of the 14th Amendment protects rights even if they are not set out specifically in the Constitution.

The Due Process Clause states simply that ““nor shall any State deprive any person of life, liberty, or property, without due process of law.”” Given the theme of this conference, one must ask about the original meaning of these words. The 14th Amendment due process clause is identical to the due process clause in the Fifth Amendment, applicable to the federal government. Two current Justices — you may guess who they are –– think the phrase ““substantive due process”” is an oxymoron. Process means procedure, not substance –– and that is what it meant historically. That the due process clause ever came to apply to legislation, as it did for the first time in the infamous Dred Scott case, is strange enough. What is the process due from a legislature? A quorum? An accurate vote count? There is something else I find quite odd about this concept. In many of the substantive due process cases the Court has stated that ““fundamental liberties”” are protected. Roe v. Wade is an example. Freedom of religion is, by all accounts, a fundamental liberty. Are we to suppose that freedom of religion is a right the state can take away so long as it does so with due process? That would be protecting a civil right in one amendment, the First, only to allow it to be taken away through another.

The Framers were smart people; they could not have intended such an absurdity. And they did not. History shows that the meaning of ““liberty”” as used in the 5th and 14th Amendments is simply freedom from restraint — that is, imprisonment. This explains why the Framers placed the due process clause in the Fifth Amendment, which deals almost entirely with criminal proceedings. Learned Hand, found the historical evidence supporting this interpretation clear beyond — in his words –– any ““reasonable doubt.” Yet the chances of the Supreme Court going back to the original understanding are, I think, slim to none.

But . . . the Fifth Amendment does not deal exclusively with criminal proceedings, the Fourteenth Amendment has nothing to do with criminal proceedings, and both do explicitly prohibit the taking of life, liberty, or property without due process of law. Given the Due Process Clauses of the Fifth and Fourteenth Amendments, I do not see how a legislature can enact any law that simply amounts to a “taking” of liberty or property for no valid constitutional purpose.

The Framers were smart people, as Randolph says. That’s why the Constitution in Article I, Section 9, says explicitly that “No Bill of Attainder or ex post facto Law shall be passed” by Congress. That’s why the Constitution in Article I, Section 10, says explicitly that “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .”

The Framers understood very well that obligation of contracts (or liberty or freedom of contract) is both a matter of liberty and a matter of property. For to interfere legislatively with liberty of contract amounts to a deprivation of due process because such interference prevents willing parties from employing their labor or property in the pursuit of otherwise lawful ends. That is, the legislature finds them “guilty” of otherwise lawful actions by forbidding and penalizing those actions.

The concept of substantive due process is in bad odor, in large part (as Wikipedia explains) because it

was first applied by the Supreme Court in a subsection of Dred Scott v. Sandford (1856), though it can be argued that the doctrine dates back to Calder v. Bull (1798). Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner’s property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States and therefore he had no right to liberty under the Constitution of 1856 — this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review — —this was a Due Process argument. Thus, the decision established lack of procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in Lochner v. New York) those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review.

Lochner v. New York is the 1905 case in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. Lochner is a bête noire to liberals because it triggered a wave of Supreme Court decisions deemed “pro-business” (as if business were an enemy). But Lochner and its offspring were decided rightly because they upheld, as a matter of due process, the Constitution’s explicit guarantee of liberty of contract. As Justice Peckham wrote for the Lochner majority,

[t]he [New York] statute . . . interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment. . . .

This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. . . .

It is a question of which of two powers or rights shall prevail,-the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

Justice Holmes, in his famous dissent in Lochner, said that “[t]he 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Social Statics (as Wikipedia explains) is a “conception of social justice, which emphasized the responsibility of the individual for their [sic] nature and actions.” Holmes, in other words, preferred a paternalistic government, as opposed to the government of liberty and individual responsibility clearly intended by the Framers. Lochner — properly understood — is not about enacting Mr. Spencer’s Social Statics nor (as usually charged) is it about achieving a certain “pro-business” result through “judicial activism.” Lochner is about honoring the Constitution’s explicit guarantee of liberty of contract, and about ensuring that that guarantee is not vitiated by legislative overreaching. It is a violation of due process when a legislature deprives citizens of liberty or property by enacting laws forbidden by the Constitution. And that, in essence, is what the Lochner Court said.

Turning to liberty of contract, I quote from Richard Epstein’s article in The Heritage Guide to the Constitution on freedom of contract (pp. 171-5):

What is clear . . . is that in the antebellum period the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. . . .

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. . . .

. . . At this point, one way to read the clause is to hold that its prohibitions [affect prospective contracts] but are not absolute. The state may later the rules governing future contracts only in ways that offer just compensatio to all contracting parties in the form of greater and stability in their contractual obligations. The three legislative reforms that arose most frequently in the early debates — a statute of frlimitationsatute of limitatins, and recording acts — are all measures that meet this standard.

By refusing to give the clause any prospective role, Ogden [1827] opened the gateway to partisan legislation that limited the ability of some parties to contract without imposing similtheirstrictions on thier economic competitors. . . .

But liberty of contract survived Ogden. I have written here about the long life and eventual demise of liberty of contract, a demise that coincided with the rise of States’ “police power”:

The Court upheld [liberty of contract] in Bronson v. Kinzie (1843). According to The Oxford Guide to United States Supreme Court Decisions (Oxford University Press, 1999, p. 33),

Chief Justice Roger B. Taney held that [a] legislative attempt to modify the terms of [an] existing mortgage was an unconstitutional impairment of the obligation of contract. Taney agreed that a state could alter the remedies available to enforce past as well as future contracts. He nonetheless emphasized that such changes could not materially impair the rights of creditors. In broad language Taney extolled the virtue of the Contract Clause: “It was undoubtedly adopted as part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout this Union.”

The Oxford Guide continues :

The Court long adhered to the Bronson rule, invalidating state laws that interfered with contractual rights in the guise of regulating remedies. The decision was effectively superseded, however, by Home Building and Loan Association v. Blaisdell (1934), in which the justices ruled that contracts were subject to the reasonable exercise of state police power.

Just what is “reasonable exercise of state police power”? In Home Building and Loan Association, according to Chief Justice Hughes, writing for the Court, it is this:

We come back, then, directly, to the question of impairment. As to that, the conclusion reached by the court here seems to be that the relief [from mortgage foreclosures] afforded by the [Minnesota] statute does not contravene the constitutional provision because it is of a character appropriate to the emergency and allowed upon what are said to be reasonable conditions.

That is, the Court simply decided to uphold a Minnesota statute that altered the terms of a contract because it wanted to do so, not because it had constitutional authority for doing so. The Constitution doesn’t forbid States to impair contracts except in emergencies or to exercise their “policing power”; the Constitution flatly forbids States to impair contracts. A libertarian Court would begin to restore freedom of contract by reversing Home Building and Loan Association v. Blaisdell. . . .

As for States’ so-called policing power, an article at FindLaw tells this tale:

[I]deas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases, 43 had been transformed tentatively into constitutionally enforceable limitations upon government. 44 The consequence was that the States in exercising their police powers could foster only those purposes of health, morals, and safety which the Court had enumerated, and could employ only such means as would not unreasonably interfere with the fundamentally natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose. 45

So having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the concepts currently accepted theories of laissez faire economics, reinforced by the doctrine of Social Darwinism as elaborated by Herbert Spencer, to the end that ”liberty,” in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York, 46 Justice Brewer in dictum declared: ”The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government.” …

To the State was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact ”authorized” by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same.

In 1934 the Court in Nebbia v. New York 52 discarded this approach to economic legislation, and has not since returned to it. The modern approach was evidenced in a 1955 decision reversing a lower court’s judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists and optometrists in private professional practice and adversely to opticians and to those employed by or using space in business establishments.

And there we are. In a single year (1934) the Supreme Court demolished liberty of contract and created out of whole cloth what amounts to an unlimited “police power” for the States — liberty and property be damned.

It is long past time for a return to the substantive due process epitomized by Lochner, that is, a defense of constitutionally guaranteed liberties against legislative usurpations of those liberties.

More on Abortion and Crime

In Freakonomics economist Steven Levitt, drawing on a 2001 paper co-authored with John Donohue, argued that access to abortion (through legalization) is the main cause of the decline in the rate of violent crime. Here’s how The Washington Post reported it:

Freakonomics is packed with fascinating ideas. Consider Levitt’s notion of a relationship between abortion access and the crime drop. First, Freakonomics shows that although commonly cited factors such as improved policing tactics, more felons kept in prison and the declining popularity of crack account for some of the national reduction in crime that began in about the year 1990, none of these completes the explanation. (New York City and San Diego have enjoyed about the same percentage decrease in crime, for instance, though the former adopted new policing tactics and the latter did not.) What was the significance of the year 1990, Levitt asks? That was about 16 years after Roe v. Wade . Studies consistently show that a disproportionate number of crimes are committed by those raised in broken homes or who were unwanted as children. When abortion became legal nationally, Levitt theorizes, births of unwanted children declined; 16 years later crime began to decline, as around age 16 is the point at which many once-innocent boys start their descent into the criminal life. Leavitt’s [sic] clincher point is that the crime drop commenced approximately five years sooner in Alaska, California, Hawaii, New York and Washington state than it did in the nation as a whole. What do these states have in common? All legalized abortion about five years before Roe .

Steve Sailer offered statistical evidence that led me to reject on Levitt’s argument in a post on May 15, 2005, saying this:

If the legalization of abortion did result in less crime it’s only because abortion became more prevalent among that segment of society that is most prone to commit crime. (I dare not speak its name.) What policy does Levitt want us to infer from that bit of causality? Would he favor a program of euthanasia for the most crime-prone segment of society? Now there’s a fine kettle of fish for Leftists, who favor abortion and oppose “oppression” of the the segment of society that is the most crime-prone.

I stand by my original assertion [here] that ” incarceration and spending on the criminal justice system…are the public-policy weapons of choice” in dealing with crime. Whatever abortion is, it isn’t a crime-footing tool.

It now seems that Levitt’s findings are built on statistical quicksand. From the abstract of a paper by Christopher L. Foote and Christopher F. Goetz of the Boston Fed:

[A] fascinating paper by Donohue and Levitt (2001, henceforth DL) . . . purports to show that hypothetical individuals resulting from aborted fetuses, had they been born and developed into youths, would have been more likely to commit crimes than youths resulting from fetuses carried to term. We revisit that paper, showing that the actual implementation of DL’s statistical test in their paper differed from what was described. . . .We show that when DL’s key test is run as described and augmented with state‐level population data, evidence for higher per capita criminal propensities among the youths who would have developed, had they not been aborted as fetuses, vanishes.

Whatever abortion is — and I have a lot to say about that in these links — it most certainly is not a crime fighting tool.

Related posts:
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Abortion and Crime
Saving the Innocent?
Saving the Innocent?: Part II
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained

Libertarianism and Preemptive War: Part II

This very long post, which you can read here, is a continuation of “Libertarianism and Preemptive War: Part I,” which dates back to July 30, 2004. Part I addressed those libertarians — mainly anarcho-capitalists, or paleolibertarians — who oppose preemption regardless of the consequences of inaction. Part II steps back to look first at the fundamentals: defining preemption, confronting the nature of our main enemies, and explaining how preemption can serve liberty. That takes me to the second main section, in which I argue that “paleos” — paleolibertarians, paleoconservatives and paleoliberals — are not motivated by liberty in their criticisms of preemption, and that the agenda of paleoliberals is especially dangerous to liberty. In the concluding section I offer criteria for preemption, consider the future of preemption, and endorse Arnold Kling’s politico-military strategy for dealing with our main enemies — a strategy that incorporates preemption.

My bottom line:

It is time for our political leaders to come together to fight the enemy instead of each other. . . .With the semblance of a united front at home, America might be able to lead the West to victory in the long war against the irreconcilable wing of Islam. Without the semblance of united front at home, America and the West will go the way of failed nations since the dawn of history: from irresolution and corruption to impoverishment and subjugation. We are already far down the path of irresolution and corruption; the brink of impoverishment and subjugation is closer than we like to think it is.

CLICK HERE TO READ THE FULL POST.

Libertarianism and Preemptive War: Part II

This is a continuation of “Libertarianism and Preemptive War: Part I,” which dates back to July 30, 2004. Part I addressed those libertarians — mainly anarcho-capitalists, or paleolibertarians — who oppose preemption regardless of the consequences of inaction. This post steps back to look first at the fundamentals: defining preemption, confronting the nature of our main enemies, and explaining how preemption can serve liberty. That takes me to the second main section, in which I argue that “paleos” — paleolibertarians, paleoconservatives and paleoliberals — are not motivated by liberty in their criticisms of preemption, and that the agenda of paleoliberals is especially dangerous to liberty. In the concluding section I offer criteria for preemption, consider the future of preemption, and endorse Arnold Kling’s politico-military strategy for dealing with our main enemies — a strategy that incorporates preemption.

I wish to acknowledge here my debt to Joe Miller. My exchanges with Joe over the past several months, first in a comment thread at Catallarchy and then in private correspondence, helped me to sharpen my case for preemption. I must emphasize that Joe does not associate himself with my views about preemption or any other issue I address. I am grateful to Joe for his patience and graciousness throughout our exchanges, in spite of our divergent views.

FUNDAMENTALS

The Foundation of Preemption: America’s Commitment to Liberty

Why is America entitled to act preemptively? Here’s my argument, in brief:

1. Any sovereign nation (A) has the right to act preemptively against any other sovereign nation (B) to prevent B from harming the ability of A‘s citizens to enjoy liberty and its fruits. In fact, if A could afford to do so, and if it would serve the interests of A‘s citizens, A might act preemptively against B to prevent B from harming C‘s citizens.

2. If A‘s preemptive act results in A‘s violating its treaty obligations, A simply has put its reason for being above an obligation that was supposed to serve its reason for being, but which patently does not. A nation dedicated to liberty is obliged, first and foremost, to take the course of action that best serves liberty.

Insofar as I can tell, America — with all of its imperfections — remains committed to the ideal of liberty. What threatens Americans threatens their liberty and the liberty of others whose liberty depends on ours. Given my view of America’s relative state of perfection, and given that Americans are entitled as much as anyone else to pursue happiness, I cannot arbitrarily rule out any other nation or foreign entity as a legitimate target of preemption. Nor can I rule out any form of action against Americans’ interests as a legitimate cause of preemption. Harm is harm; the question is how best to respond to the prospect of harm.

What Is Preemption?

To decide whether you can subscribe to the doctrine of preemptive war, put yourself in this scenario. You are a peaceful person who might have acquired some enemies. But your enemies are self-selected — you did not choose them, they chose you. And they chose you not because of what you did to them but because they resent you in some way. Perhaps they simply don’t like you because you are not one of them; perhaps you are wealthier or more accomplished than they; perhaps they view your strength as a threat to their goals and wish, somehow, to weaken you; perhaps you are too religious for their taste (even though you don’t insist on forcing your religion on them); perhaps you are not religious enough for their taste (and so you are some sort of “infidel”); perhaps you simply wandered into their neighborhood and violated their “pride” by doing so. Whatever the reason for their enmity, it is irrational by your standards, and you are not about to adopt their standards because if you did you would then lower your standards to meet theirs.

Now, given the enemy I have described briefly, you must decide at what point you would take action against that enemy:

1. Never, not even after the enemy has struck you a blow.

2. Perhaps after the enemy has struck you a blow, but not until you understand why the blow was struck.

3. After the enemy has struck you a blow, regardless of the reason for the blow.

4. When you see the blow coming.

5. When you learn that the enemy has the wherewithal to strike a blow and is actively planning to strike you.

6. When you learn that the enemy is an enemy and is gathering the wherewithal to strike someone, very likely you.

7. When you learn that the enemy is an enemy.

8. When you learn that someone (who may or may not be an enemy) is gathering the wherewithal to strike a blow to someone.

If you chose number 5 you are for preemption. If you chose number 6 (as I would) you are for a strong version of preemption. If you chose number 7 or number 8 you run the risk of wasting your ammunition.

I’m not suggesting that I would choose number 6 in every case, but I would be willing to go that far if the evidence about the enemy’s intentions is strong enough. Nor am I suggesting that preemptive military action should be the first resort in cases 4 through 6. But preemption must follow other measures (e.g., diplomacy backed by the threat of force) if those measures fail, and if preemption seems likely to succeed, and if the cost of preemption seems worth the gains (a political judgment, not an economic one).

More about Our Enemies and Their Aims

You, the innocent, are targets simply because you’re Americans. Your main enemies — Osama bin Laden and his ilk — don’t care about the lives and property of innocents, because your main enemies don’t see you as an innocent. Your main enemies don’t care what you think about George Bush, the invasion of Iraq, or preemptive war. Your main enemies don’t care whether you’re an anarchist, crypto-anarchist, libertarian, communitarian, or even neo-fascist. You don’t have to choose sides, your main enemies have done it for you.

The only ideology your main enemies value is fundamentalist Islam, and they would impose a fundamentalist Islamic state upon you if they could. But they may settle for the retreat of the United States from the world stage, beginning with the Middle East. In that event, your main enemies — needing only enough wealth to finance their terrorism — would be in a position to disrupt that region’s oil production, and you would become poorer, ever more vulnerable to their threats of death and destruction, and ever more isolated from your opportunistic “allies” in Europe.

Our main enemies include those nations that support, give shelter to, or otherwise directly aid bin Laden and his ilk. Their agenda may not be the advancement of fundamentalist Islam, but they have chosen to aid our main enemies, which makes them our enemies.

We have other enemies (e.g., North Korea), which have agendas separate from those of fundamentalist Islamists and their allies. We cannot lose sight of those enemies in our preoccupation with fundamentalist Islam. They can be just as dangerous to Americans and Americans’ interests, and so they become legitimate prospects for preemptive action.

Beyond that, no nation can consort with or condone the actions of our enemies without risking our wrath. We can and should go to great lengths to preserve cordial and beneficial relations with our “neighbors” in this hemisphere and our “friends” overseas. But our neighborliness and friendship should not be tested to the point that we become unwitting accomplices in our own undoing. A treaty is not a suicide pact.

Now, if you remain opposed to preemption, you should ask yourself whether you are willing to acquiesce in your main enemies’ aims — or the aims of any foreign state or entity that makes itself our enemy. For, you must be acquiescent if you believe that the United States should not undertake military operations overseas until the target of those actions

  • has already struck the U.S. or its interests abroad, or
  • is about to strike the U.S. or its interests abroad, or
  • is actively aiding an enemy who has struck or is about to strike the U.S. or its interests abroad.

By contrast, those who believe in the policy of preemption (or prevention, if you prefer) do not believe in allowing the enemy — any enemy — to reach the point where he is about to strike the U.S. or its interests abroad. Moreover, a “hawkish” proponent of preemption (as I am) believes that the sooner an enemy is preempted — perhaps by preventing him from acquiring the ability to strike — the better.

I go further and say that the legitimate purpose of preemption isn’t just to protect the lives and property of Americans. Rather, it is to preserve Americans’ liberty, in the fullest sense of that word.

Liberty in Full

There is much more to liberty than freedom from unwarranted restraint. There is the full enjoyment of liberty, which includes — but certainly is not limited to — the right to pursue life’s comforts. “Only” being deprived of oil (for example) — or otherwise being forced to endure reduced circumstances — is an affront to liberty. As I have argued elsewhere, liberty is

the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. I am using “liberty” here to encompass what the Founders intended by “life, liberty, and the pursuit of happiness” in the Declaration of Independence.

To elaborate: Without life, there is nothing. Without freedom of thought, speech, and action, life is unendurable. And freedom of thought, speech, and action amount to nothing unless they are deployed in the pursuit of personal goals, a pursuit that is restricted only by this edict: cause no actual harm to others. The successful pursuit of personal goals requires the right to own, use, and dispose of property; otherwise, one is a slave to the state.

Liberty is a package. Take away one part of it and the rest of it is either void or devalued. An enemy who robs us of the free pursuit of happiness is just as much an enemy of liberty as one who kills or enslaves us.

If the state has one legitimate task, then, it is to defend its citizens’ lives, freedoms, property, and pursuit of happiness. The American state was reconstituted in 1788 specifically to provide for that defense. I therefore view the American state as legitimate, even though it does much wrong. The Constitution, with its promise of liberty, still binds us, anarchists and anarcho-capitalists to the contrary notwithstanding. It is our task, as Americans, to redeem the Constitution’s promise, which includes providing for the common defense.

The common defense is not the defense of the world or the defense of “democracy” in the world, it is the defense of Americans’ liberty, such as it is these days. Americans enjoy the vestiges of the liberty promised in the Constitution, not because liberty is a “natural right” (it isn’t) but because the Founding Fathers made it possible for us to enjoy liberty.

Some would have us treat all peoples and all nations as if they were endowed with the same rights as Americans. But they are not, regardless of high-flown rhetoric to the contrary. As it was at the founding of our Republic, so it remains: Liberty must be won and kept through politics and war.

Americans live together in a semblance of liberty with peace because we are bound by the Constitution. Other peoples and nations are not so bound. To treat those other peoples and nations as if they were entitled to our privileges is to compromise America’s sovereignty, which is the shield of Americans’ liberty.

We cannot extend liberty to other nations or other persons willy-nilly but, rather, only as it promises to help preserve Americans’ liberty. America must act in the world — economically, diplomatically, and militarily — sometimes out of empathy, sometimes to garner goodwill, or sometimes to influence events. But America’s actions in the world must be calculated to serve Americans’ interests. We cannot afford to be the world’s policeman; we must save our ammunition for the defense of Americans’ liberty.

A DIGRESSION ABOUT PALEOS

Paleos and Liberty

My view of preemption is in the spirit of the Declaration of Independence and the U.S. Constitution, which seek to secure “Life, Liberty, and the pursuit of Happiness” for Americans and “to secure the Blessings of Liberty. . . to our Posterity.” Paleos seem to subordinate Americans’ liberty interests to narrower interests. Paleos — unlike libertarian hawks, almost all Republicans, most political independents, and many Democrats — give short shrift to America and the defense of Americans’ liberty. Most paleos would deny that, of course, but their beliefs and actions belie their words.

Paleolibertarians view no state as legitimate, not even the American state, which exists to protect their liberty, and without which they would be at the mercy of warlords. Paleolibertarians place the non-aggression principle above liberty. That is, they would rather live by the dictates of an enemy than compromise a principle that merely serves liberty (when the principle is obeyed or enforced), but which is not the same thing as liberty. Their motto ought to be “Non-aggression above all, even liberty.”

Paleoconservatives are not the kind of conservatives with whom any self-respecting libertarian (or Burkean conservative) would associate. Their real agenda (e.g., nativism, protectionism, and isolationism) — like the non-aggression of paleolibertarians — belies their supposed dedication to liberty. Their motto ought to be “America first, liberty second.”

Paleoliberals give short shrift to liberty through their rabid opposition to defense and war. They would like to have liberty without the inconvenience of arming and fighting for it. They would rather spend the money on the regulatory-welfare state, which has done more harm to liberty in America than has any foreign enemy. Paleoliberals are what I call “foxhole rats.” Their motto ought to be “Liberty is the enemy of our agenda.”

Paleoliberals as a Particular Threat Liberty

The paleoliberal agenda deserves more space because it is perversely irrational. Paleoliberals — who pose the greatest domestic threat to the defense liberty — have a strange tendency to focus on the wrongness of certain kinds of acts without reference to the purposes of those acts. Thus they reflexively view war as bad because it involves killing, forgetting that war can serve liberty. They reflexively view capital punishment as bad because it involves the taking of a life, forgetting that the taking of a life as punishment can deter crime and serve justice, and ignoring the fact that the abortion of an innocent fetus takes a life. In the same vein, they tend even to question self-defense if it requires violence against an attacker, not only violence by firearm (heaven forfend!) but violence by other means. Consider the case of the anti-rape condom, as reported by Eugene Volokh:

“Anti-Rape Condom Aims to Stop Attacks” (Reuters):

A South African inventor [Sonette Ehlers] unveiled a new anti-rape female condom on Wednesday that hooks onto an attacker’s penis and aims to cut one of the highest rates of sexual assault in the world. . . .

Sounds like a great plan, always on the assumption that it works. It may indeed, as some critics seem to say, “enrage the attacker further and possibly result in more harm being caused,” in the words of “Sam Waterhouse, advocacy coordinator for Rape Crisis.” But it may also make him run screaming in pain, focused more on getting the condom off than continuing with the act. This is especially so when the rapist doesn’t have a gun or a knife, and in the U.S., at least, nearly 85% of rapes don’t involve a weapon (see table 66 here). Naturally, not a panacea, but a nice try. . . .

. . . “Other critics say the condom is medieval and barbaric”; I don’t know who the critics are, but I did indeed see one criticism following the story, in a Kansas State University newspaper, calling the device “barbaric.” I do not think that word means what you think it means. Rape is barbaric. Sticking hooks into an attacker’s penis as a means of interrupting a rape is eminently legitimate self-defense, even setting aside the poetic justice.

I interject Volokh’s anecdote here because paleoliberals — who are found in abundance at universities, and who otherwise deplore violence against women — strike me as those most likely to protest an effective defense against rape because the defense might be “barbaric” — without giving any thought to the purpose or likely effectiveness of that defense. The point is that paleoliberals wish for a world in which all is well (as long as it adopts their values), but they seem unable to reconcile themselves to the reality that such a world might have to be purchased at the price of preparing for and committing violence.

I focus here on paleoliberals because of their influence. A convention of paleolibertarians and paleoconservatives might fill a football stadium, but despite the noise they make, they have about as much to do with the outcome of the political game as a bunch of drunken fans. Paleoliberals, on the other hand, are all around us — in politics, entertainment, the media, and the world of words and ideas. They pose a significant threat to liberty (on domestic as well as defense issues), not only by their numbers and their eminence, but also because they are so influential in the Democrat Party. Those Democrats who are not paleoliberals must nevertheless accommodate paleoliberals in order to secure the party’s endorsement and support in elections. (One must not forget that Bill Clinton managed to reduce the budget deficit largely because he pared defense spending.) The paleoliberal attitude and paleoliberals’ access to power are illustrated by an incident in the early days of the Clinton administration: A female staffer at the White House, responding to a “good morning” from Gen. Barry McCaffrey, then an assistant to Gen. Colin Powell, replied “I don’t talk to the military.” McCaffrey later tried to minimize the incident, but it speaks volumes about the marriage of convenience between the Democrat Party and the post-patriotic Left.

Finally, a few words about opposition for opposition’s sake. There was plenty of it among Republicans during Clinton’s administration and there’s been plenty of it among Democrats since George W. Bush became president. The constant carping about Bush — first for daring to utter “axis of evil,” then for invading Iraq, and more recently for not forestalling the events in New Orleans — is fed by and plays into paleoliberals’ anti-libertarian agenda: more government, but not for the defense of Americans.

Those who join the anti-incumbent chorus instead of offering viable alternatives to the incumbent’s actions — that is, alternatives which would actually promote liberty — are doing a good job of widening the schism in America and sounding an uncertain trumpet for our enemies to hear. They are at liberty to do so, but that they are willing to do so speaks volumes about modern liberalism’s disdain for liberty, which already is evident in its statist, collectivist agenda.

Enough of paleos. I must get on with the real task at hand, which is to address non-paleos about the ground rules for preemption, that is, when and how to do it — in broad terms. For it is possible for those who care to put liberty first to disagree respectfully about how best to defend liberty.

PREEMPTION IN PRACTICE

Criteria for Preemption

The case for preemption, in any specific instance, rests on the extent to which a foreign state or entity threatens Americans’ legitimate liberty interests. The case for preemption must be met by answering five related questions:

1. What is the object of preemption?

2. Who can be the target of preemption?

3. When is preemption the appropriate course of action?

4. Must preemption be limited to a “proportional” response?

5. Do treaty obligations trump preemption?

What Is the Object of Preemption?

The object of preemption must be to prevent a foreign state or entity from acquiring the means by which to attack Americans’ liberty interests, or to prevent the state or entity from deploying those means if it already has acquired them.

Who Can Be a Target of Preemption?

Does that formulation mean, for example, that the United States could preemptively occupy Saudi Arabia and seize Saudi oil facilities if good intelligence indicates that (a) the present Saudi regime is about to drastically curtail oil production for reasons of its own, (b) al Qaida has co-opted the Saudi regime or (c) al Qaida is about to launch a massive attack on Saudi oil facilities, a strike that the Saudi government would be unable to prevent?

The first scenario might eventually lead to preemption, if certain other conditions are met, as discussed below.

The second and third scenarios would almost certainly warrant preemption because of the potential harm to the well-being of Americans posed by a declared enemy operating within the territory of a state that is not an overt enemy. It is one thing if Americans lose jobs and income through the normal fluctuations of the business cycle. It is another thing, entirely, if Americans are likely to lose jobs and income because of what would amount to an act of aggression by a foreign enemy. If we would not stand for the sabotage of oil refineries on American soil, why would we contemplate the sabotage of overseas facilities that provide oil which is refined in the United States?

Americans are not “entitled” to oil. But they are entitled to ply trade with willing partners who provide oil. The principle applies to any product or service. The question isn’t whether the United States might legitimately conduct preemptive operations in defense of free trade, but under what circumstances such operations are warranted.

When Is Preemption the Appropriate Course of Action?

Given the foregoing, preemption is appropriate when several conditions are met. First, it must be clear that the target of preemption is an enemy of the United States. A foreign state or entity can be an enemy without having any immediate or specific plans to attack Americans or their interests. Thus a foreign state or entity can become an enemy by

  • undertaking to harm Americans’ interests through unilateral actions (e.g., shutting off a major supply of oil)
  • threatening allies of the United States upon whom we depend for trade (e.g., Iraq in 1990)
  • threatening or planning to attack nations whose defeat might jeopardize the United States (e.g., Hitler’s declaration of war on Great Britain in 1939)
  • threatening or planning to attack geo-strategic targets of importance to the United States (e.g., the oil fields of the Middle East or South America, the Suez or Panama Canal)
  • developing, or planning to develop, the wherewithal to acquire weapons that could enable it to attack the United States, harm Americans’ interests, attack our allies, or attack strategically important nations or geo-strategic targets
  • otherwise engaging in a persistent course of provocative opposition toward the United States, which opposition might consist of pronounced ideological enmity (as in the cases of Cuba and North Korea, for example) or efforts to harm the United States through economic or diplomatic machinations (as did the USSR during the Cold War).

Such conditions are necessary but not sufficient for preemption. Preemption should follow only under these circumstances, where they are relevant to the intended target of preemption:

  • the failure of lengthy diplomatic efforts, which may include the United Nations but need not depend on the UN’s course of action (see the subsection below on treaty obligations)
  • the failure of economic sanctions and military threats
  • the effect of preemption — or non-preemption — on long-term relations with states of diplomatic, military, or economic importance to us
  • whether there is a good prospect of success
  • the likely price of success, in life, limb, and money
  • the likely price of failure to act or to act effectively (about which see the next sub-section)
  • an open debate resulting in an authorization by Congress, where events do not require swift and even clandestine actions, which must be discharged in accordance with the War Powers Resolution of 1973.

 


Must Preemption Be Limited to a “Proportional” Response?

Preemption should be limited to the military means necessary to accomplish the object of preemption, no more and no less. No more because excessive force can harm the standing of the United States with its allies others upon whom it might depend for moral and military support in future contingencies. No less because failure or perceived failure (as in Vietnam, Lebanon, Somalia, and Gulf War I) can embolden our enemies.

Do Treaty Obligations Trump Preemption? (Iraq as a Case Study)

Opponents of the present war in Iraq argue, among other things, that the war is illegal because the United States is not acting under a resolution of the United Nations that specifically authorizes the war. That argument hinges on a reading of certain provisions of the U.S. Constitution and the UN Charter. First, there is Article VI, Clause 2, of the Constitution, which says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Then there are these provisions of the UN Charter:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (Article 2, Clause 3)

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (Article 39)

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Article 51)

All of which has been read to say this: Treaty obligations are legally binding on the United States. Our treaty obligations under the UN Charter therefore require us to proceed to war only in the case of self defense, and then only until the UN has decided what to do about the situation.

On the other hand, there is Article II, Section 1, of the UN Charter, which states that the UN “is based on the principle of the sovereign equality of all its Members.” From that principle comes the authorization for the invasion of Iraq (Public Law 107-243, 16 October 2002):

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. –The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to —

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION. — In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that —

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq. . . .

The Security Council resolutions referred to are those that had been passed in the years preceding the invasion of Iraq. It is clear that PL 107-243 contemplated military action without a further, authorizing UN resolution.

Absent PL 107-243 the invasion of Iraq might be found illegitimate under the doctrine enunciated by Chief Justice Marshall in The Nereide (13 U.S. [9 Cranch] 388, 422, 3 L. Ed. 769 [1815]) that in the absence of a congressional enactment, United States courts are “bound by the law of nations, which is a part of the law of the land.” But there was a congressional enactment in the case of Gulf War II. Therefore, under the Constitution, the issue of the legitimacy of the invasion of Iraq or any other preemptive act authorized by Congress becomes a political question.

A legal challenge of the legitimacy of the PL 107-243 (Doe v. Bush) was rebuffed, first by the U.S. District Court for the District of Massachusetts in a summary judgment, then by the U.S. Court of Appeals for the First Circuit after hearing arguments from both parties. It was evident by the date of the appellate court’s opinion (March 13, 2003) that President Bush was on a course to invade Iraq without a specific authorizing resolution by the UN Security Council (the pre-invasion air bombardment began on March 20, 2003). The appellate court nevertheless ducked the issue of the war’s legitimacy under the UN Charter, claiming that that issue was not yet “ripe” for adjudication. The concluding language of the court’s opinion suggests, however, that the judicial branch is unlikely to rule on the legitimacy of military action unless such action is the subject of a dispute between the legislative and executive branches:

In this zone of shared congressional and presidential responsibility [for war-making], courts should intervene only when the dispute is clearly framed. . . . Nor is there clear evidence of congressional abandonment of the authority to declare war to the President. To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade. . . . Finally, the text of the October Resolution itself spells out justifications for a war and frames itself as an “authorization” of such a war.

It is true that “courts possess power to review either legislative or executive action that transgresses identifiable textual limits” on constitutional power. . . . But courts are rightly hesitant to second-guess the form or means by which the coequal political branches choose to exercise their textually committed constitutional powers. . . . As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.

Similar formulations can be found in Dellums v. Bush, 752 F. Supp. (D.C. Cir. 1990), and Goldwater v. Carter, 444 U.S. 996 (1979).

In sum, as long as Congress and the president have agreed a course of action, as in the case of the preemptive invasion of Iraq, U.S. courts are unlikely to rule that a preemptive military operation is illegitimate under the Constitution. Whether such an operation is illegitimate in the minds of its opponents or in the councils of the United Nations is irrelevant to the nationalistic view of preemption.

The decision to preempt is a political judgment in which Congress puts America’s sovereignty and the protection of Americans’ interests above putative treaty obligations. It seems unlikely that a court (the U.S. Supreme Court, in particular) would find that the constitutional grant of power to declare war, which is so fundamental to America’s sovereignty and to the protection of Americans’ interests, can be ceded by treaty to an international body that cannot be relied upon to protect our sovereignty and our interests. (UPDATE: Later posts on this subject are here and here.)

Summary

Each specific act of preemption must pass a five-fold test:

1. The object must be to protect Americans’ liberty interests, broadly understood, by preventing a foreign state or entity from acquiring the means by which to attack Americans’ those interests, or to prevent the state or entity from deploying those means if it already has acquired them.

2. The sovereignty and legitimacy of the target of preemption are irrelevant, ultimately, though such considerations should influence our willingness to strive for a diplomatic and/or economic solution.

3. Preemption should be a last resort, following our good-faith efforts toward finding a diplomatic and/or economic solution, and only then after an open debate in which the likely costs and benefits of preemption are weighed.

4. Preemptive military operations should not be undertaken unless there is a good certainty of success. Failure could prove to be more costly, in the long, run than inaction.

5. A preemptive operation must be carried out in accordance with the War Powers Resolution of 1973. But treaty obligations cannot trump America’s sovereign right to wage war for the protection of Americans’ liberty interests.

The Danger Ahead

Is it possible to regain the footing we have lost since the end of World War II, when our purpose was clear and our voices more united on the subject of war than at any time in our history?

Reasonable Americans may differ at to why, when, and how the United States should (or should not) use military force preemptively. I do not, however, count among the reasonable the obdurate paleos whose commitment to the liberty of the fellow Americans is subordinated to the lesser gods of non-aggression, isolation, and the regulatory-welfare state — when it they are not simply opposing the administration of the day for opposition’s sake.

Given the degree of unreasonableness that has come to pervade the public “debate” — in and out of government — it is hard to sort out the competing visions and arrive at a consensus about how to deal with our enemies. As David Wood of Newhouse News Service suggests in a recent analysis:

The United States is, in some ways, badly designed to wage global war against an elusive and adaptive enemy like al-Qaida and its followers. American power is divided between Congress and the executive branch, which itself is further divided into agencies with different missions, different cultures, even different computer systems. A noisy public amid 24-hour cable news and the blogosphere jolts this lumbering beast with periodic doses of high-adrenaline crisis and superheated opinion.

In a less frenetic time, President Franklin Roosevelt forged a grand strategy in World War II that dictated a temporary alliance with the Soviet Union to defeat Germany before turning to Japan.

Early in the Cold War, the United States adopted a grand strategy to “contain” the Soviet Union rather than attack or retreat into isolationism. That strategy gave birth to the NATO defense alliance and the Marshall Plan to strengthen Europe’s democracies.

Despite some costly lapses like the 1961 Bay of Pigs fiasco, the strategy of containment served to guide major and minor policy decisions and to set the context for public debate and a bipartisan political process for four decades.

“We don’t have that,” said Thomas X. Hammes, a decorated career Marine officer, fellow at the National Defense University in Washington and author of “The Sling and the Stone: On War in the 21st Century.”

And one result, he said, is that “you lose the will” of the American public, a critical factor in any lengthy, high-risk and costly venture.

The will has been lost, I fear. Without the will, preemption is a valid concept that cannot be executed for want of a sufficiently strong constituency. And so America will revert to being the “pitiful, helpless, giant” that it was most of the time from the Korean War until September 11, 2001, when the defense of Americans and their liberty — all too briefly — became more important than defeatism, appeasement, multilateralism, and partisan politics.

If we cut and run from Iraq (openly or with political cover from Iraq’s government) — as we did from Vietnam, Lebanon, and Somalia — we will advertise to the world our unwillingness to use preemption in the defense of Americans and their liberty. Nations whose animus toward America is well known will proceed, undeterred, to aid our enemies, overtly and covertly. The volatile Middle East will become either a unified enemy camp or an undependable source of oil, rife with terrorism and civil war. And the West — led by Western Europe, in its dysfunctional state — will begin a painful economic and social decline. Unless we can find a winning strategy around which to rally.

A Winning Strategy?

Arnold Kling, a most sensible economist who thinks broadly, recently essayed a measured defense of preemption. As Kling points out,

the conflict in which we are engaged has suffered from vagueness of definition. President Bush first described it as the “global war on terror.” Since then, many people have argued that this formulation fails to face up to the role of Islam. For example, Newt Gingrich suggests that we call this the “Long War” against the “irreconcilable wing of Islam.” That terminology will do. However, terrorism is important, because attacks on civilians are the modus operandi of Islam’s irreconcilable wing.

Kling then nicely trichotomizes the war on terror:

In a complex global war, it can be useful to view the conflict as a combination of several theaters of operation. I think of this war as having three theaters: cultural, technological, and conventional military. Each theater provides a potential for victory or defeat.

The cultural theater is the contest between American values and the ideology of what Gingrich calls the irreconcilable wing of Islam. We could win in the cultural theater if Muslim moderates were to assert themselves strongly, so that the radical wing shrinks and loses viability. On the other hand, our society has its own internal divisions and weaknesses. We can lose in the cultural theater if our fighting spirit gives way to feckless appeasement. Another possibility would be for the majority of the world’s Muslims to become radicalized, while the Western democracies coalesce in self-defense. That would set the stage for spectacular bloodshed.

The technological theater is one where each side has the potential to alter the balance of power in a dramatic way. We would win in the technological theater if we were to establish Surveillance Supremacy, meaning the ability to track with confidence the movement and threat potential of terrorists. We would lose in the technological theater if terrorists are able to deploy weapons of mass destruction on American soil.

The conventional military theater is the set of places where Americans and others in the “coalition of the willing” are fighting Islamic militants. In addition, Victor Davis Hanson identifies four countries — Iran, Saudi Arabia, Pakistan, and Syria — that are potentially in the conventional military theater, because their governments have an attitude toward terrorists that is ambivalent, to say the least. We can win in the conventional military theater if we kill a large proportion of terrorists and deny them access to funding, supplies, and training. We can lose in the conventional military theater if terrorists are able to carry out major operations routinely without effective disruption.

In the cultural theater, we are trying to change the attitudes and behaviors of Muslims around the world. The Bush Doctrine focuses on using democracy as the lever to achieve such change. Supporters of the Mush Doctrine believe that America can, by playing more nicely in the international schoolyard, achieve victory in the cultural theater.

My question about strategies focused on the cultural theater is this: Even assuming that we choose the best strategies and they work as well as one could possibly hope, when is the soonest that we could expect victory? 2040? 2050?

On the other hand, my guess is that within ten or fifteen years of today, weapons of mass destruction will be easier for terrorists to access. (The technology for surveillance also is advancing rapidly.) Given the increased risks of proliferation, unless we achieve surveillance supremacy or defeat the terrorists conventionally, we will have lost the war technologically long before the wave of radical Islam recedes. From this assessment, it follows that:

The war is likely to be decided in the technological theater.

Until the decision in the technological theater is reached, I think that our goal in the conventional military theater should be to apply as much pressure as possible. We should try to hold the line in the cultural theater, but it is futile to rely on a decision there.

He concludes:

Going forward, my recommendations for the Bush Doctrine would be to try to rejuvenate the pre-emption doctrine while lowering expectations for democratic transformation. In particular, I would recommend:

 

1. Build on the concept of a “coalition of the willing” by creating a formal alliance against the irreconcilable wing of Islam. Members of the alliance will be consulted on strategy and will enjoy the prestige that comes with active participation in the long war. If some countries prefer tacit support or neutrality to membership in the alliance, then so be it. A new war calls for a new alliance, which is not necessarily the same as the alliance that was left over from the Cold War.

2. We need a new institutional mechanism for determining when pre-emption is justified. The ex post effort to delegitimize the invasion of Iraq is terribly corrosive. At this point, it does not matter whether the problem is that Bush lied or that Democrats are airbrushing history. Either way, we are signaling to the rest of the world that we might never again muster the political will to engage in pre-emptive military action.

In the future, there may be a compelling need to use force against another country. If so, then we need a process that allows us to do so. I am thinking of some sort of independent, bipartisan intelligence review commission, whose job is to evaluate rogue nations on an ongoing basis and to advise Congress and the President when to go to war. There may even be a role on this commission for other countries in our alliance.

3. Finally, we need powerful internal audits of our key agencies, both for effectiveness and for conformity to Constitutional protections of individual rights. For example, Gingrich writes,

“The office of the DNI [Director of National Intelligence] could have an advisory board, functioning as a corporate board of directors, which would meet at least monthly to represent the President, the Congress and the American people, provide a review function and sound and practical guidance. These directors could include individuals with a national reputation as successful managers in government or the private sector. They might include a former mayor or state governor, a corporate CEO, or someone who has effectively run a governmental program in an area outside of intelligence.”

I have thought along similar lines. A few months ago, I wrote, “What needs to be watched most closely? Our airports? Our rail systems? Our government buildings? Our borders? Radical Muslims? I think that the top security priority should be to set up a system to monitor the Department of Homeland Security. I am not kidding.”

Overall, my sense is that we have reached a point where the Bush Doctrine no longer serves as a sufficient basis for addressing the long war against the irreconcilable wing of Islam. The three institutional changes listed above could bolster our ability to conduct the war in the future.

It is time for our political leaders to come together to fight the enemy instead of each other. Kling’s recommendations strike me as an excellent starting point from which to form a coalition of the willing among America’s responsible political leaders — some Democrats included and some Republicans excluded. With the semblance of a united front at home, America might be able to lead the West to victory in the long war against the irreconcilable wing of Islam. Without the semblance of united front at home, America and the West will go the way of failed nations since the dawn of history: from irresolution and corruption to impoverishment and subjugation. We are already far down the path of irresolution and corruption; the brink of impoverishment and subjugation is closer than we like to think it is.

Christmas Movies

Last night my wife and I saw, for the first time, A Child’s Christmas in Wales (1987), a 55-minute, made-for-TV adaptation of Dylan Thomas‘s eponymous short story. A Child’s Christmas now tops my very short list of great Christmas movies.

Thomas’s poetic language is spoken beautifully by Denholm Elliott. Elliott plays a grandfather who, on a Christmas eve in the present, is telling his grandson about Christmases past. The filmmakers set the past in the first decade of the 1900s — a bit before Thomas’s time (he was born in 1914), but more appropriate to the film’s sense of innocence and joyousness than would have been a post-World War I setting.

A Child’s Christmas is richer in humor than other great Christmas movies, but there is no doubt about its ability to tug at the heartstrings. The soft, sweet ending leaves a lump in the throat. In spite of the Welsh accents, which are toned down, the movie would be a treat for children of, say, ages eight to twelve because so many scenes are played for laughs. But it would be enjoyed only by those children (and adults) who read to learn, who appreciate gifted writing, and who disdain the raucousness, vulgarity, viciousness, and anomie that seems to pervade today’s music, movies, TV, and video games.

Other great Christmas movies, in descending order of preference:
A Christmas Carol (1938, the warmest and brightest of the many versions — and not, praise be, a musical version)
Miracle on 34th Street (1947)
It’s a Wonderful Life (1946, the darkness becomes bright)

Taxes, Charitable Giving, and Republicanism

I wrote recently about the apparent superiority of Red States over Blue States when it comes to charitable giving. Subsequent posts by Stephen Bainbridge and Gail Heriot prompted me to look more closely at the numbers behind the numbers that I cited.

I went to Generosity Index at the Catalogue for Philanthropy, where I found the underlying data about itemized charitable contributions vs. income, by State. The measure of income used to compute the Generosity Index is adjusted gross income. To get a truer picture of the propensity to give to charity, I converted adjusted gross income to after-tax income by calculating and applying an effective tax rate for each State based on its Tax Freedom Day (detailed data here). With that result in hand I calculated each State’s average itemized charitable contributions as a percentage of average after-tax income. I plotted that statistic against the percentage of votes cast for Bush in 2004, by State.

The relationship between after-tax giving and Bush votes is indicated by the black plot points in the following graph:

The best regression fit for the relationship between after-tax charitable giving and Bush votes is an exponential (the black line):

Itemized charitable contributions as percentage of after-tax income =
0.0304e^2.5026 x (percentage of votes cast for Bush in 2004)
R-squared = 0.59

The exponential fit indicates that the rate of after-tax giving accelerates as the percentage of Bush votes increases. Moreover, the fit — as good as it is — understates the rate of acceleration, as can be seen by inspecting the residuals (the differences between the regression estimates and the actual data), which are plotted in red. Note that the four largest residuals are positive (that is, the equation underestimates charitable giving) and represent pro-Bush States, with vote percentages of 54, 57, 60, and 69.

You might think that the higher rate of giving among Red States is the result of lighter tax burdens in those States. It is true that Red States generally have lighter tax burdens than Blue States, as the following graph attests:

But you can see readily that — given the same tax burden — Red States outstrip Blue States in charitable giving. You can see, also, that there is a strong negative relationship between taxes and charitable giving. It doesn’t show up in the data for the Blue States, which are almost uniformly parsimonious when it comes to charitable giving, but it’s definitely there in the case of the Red States. For all States (with the exception of Wyoming, the far “outlier” at the top of the graph), a linear regression yields a one-to-one negative relationship between the tax burden and charitable giving; that is, for every 1 percentage point rise in the tax burden, after-tax charitable giving drops by 1 percentage point.

I draw two conclusions:

  • There is a significant, positive relationship between Republicanism and charitable giving, as indicated by both graphs.
  • Taxes crowd out charity (no surprise), as indicated by the second graph.

Ghosts of Thanksgivings Past

From my “Reveries“:

I remember my grandmother’s house in a small, lakeside village about 90 miles north of where I grew up. Her modest, two-story bungalow sat on a deep lot that backed up to open fields where doves cooed as I awoke on sunny, summer mornings to the smell of bacon frying. My favorite room was the kitchen, with its massive woodstove and huge, round, oak table, around which my grandmother, parents, and various aunts and uncles would sit after a meal, retelling and embellishing tales from the past.

I remember them all as if it were yesterday, even though most of them are long gone. There was my beloved Grandma, of course, the matriarch and mother of ten, seven sons and three daughters. Grandpa died four days before I was born and was buried on the day I was born. Grandma outlived him by 36 years.

A few others were absent from our holiday gatherings by choice — or not: Aunt Isabelle was always at her home with Uncle Lucien and their own brood of ten. Aunt Helen avoided boisterous family gatherings, though she was close to my mother and visited my home often. Uncle Charles seems to have fled for the sunny South with Aunt Lucille, only to be heard from in Christmas cards. Uncle Louis was the first of Grandma’s children to die, and the only one who predeceased her: At the age of 40 he was killed in a road accident while on active duty in the Coast Guard, leaving Aunt Marguerite and several children.

But the present more than made up for the absent. Of the men there was Uncle Joe, the eldest son and another career Coast Guardsman, who among family would unbend from his Chief Petty Officer’s demeanor; Uncle Lawrence, the joker and story-teller; Uncle Chet, another raconteur and — truth be told — a fair tippler; Uncle George, quieter than Lawrence and Chet, but good with the quip; and the “baby” (born when Grandma was 42) — Uncle Fred, taciturn to a fault and a bachelor until he passed the age of 40. My father (Pop) rounded out the adult male contingent, and he was closer to his brothers-in-law than he was to his many half-siblings.

The women: my mother (Mom) the eighth child and youngest of the three girls; Uncle Joe’s Mary, a flapper in her day; Uncle Lawrence’s Christine, the scold; Uncle Chet’s Mary, the jolly one; and Uncle George’s Peg, a schoolteacher who knew how to let her hair down — just enough.

The cousins: Too many to name, but my favorites were Lawrences’s Sharon and Karoleen and Chet’s Geraldine. Cousin Chuck (Charles’s son) showed up for Christmas one year and added to the fun; he should have joined us more often.

Only Mom is left. Pop is gone, as are all of Mom’s siblings and their spouses. For the departed:

Where are Elmer, Herman, Bert, Tom and Charley,
The weak of will, the strong of arm, the clown, the boozer, the fighter?
All, all, are sleeping on the hill.

One passed in a fever,
One was burned in a mine,
One was killed in a brawl,
One died in a jail,
One fell from a bridge toiling for children and wife —
All, all are sleeping, sleeping, sleeping on the hill.

From The Hill, by Edgar Lee Masters (1869-1930)

Time, you old gipsy man,
Will you not stay,
Put up your caravan
Just for one day?….

Last week in Babylon,
Last night in Rome,
Morning and in the crush
Under Paul’s dome;
Under Paul’s dial
You tighten your rein —
Only a moment, and off once again;
Off to some city
Now blind in the womb,
Off to another
Ere that’s in the tomb.

From Time, You Old Gipsy Man, by Ralph Hodgson (1871-1962)

The Original Meaning of the Ninth Amendment

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

I have quoted elsewhere the following passage from the U.S. Senate’s annotated Constitution:

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

Today I received my copy of The Heritage Guide to the Constitution, which includes an article (pp. 366-371) about the Ninth Amendment by Thomas McAffee. According to McAffee,

. . . Madison . . . affirmed that the reason for the Ninth Amendment was not to expand the power of the Court to find new rights, but rather to restrict the ability of the Court to expand the legislative powers of Congress. Madison continued to maintain that that was the central meaning of the Ninth Amendment throughout his life, and his interpretation was seconded by most commentators of the time.

Related posts:

Notes on the State of Liberty in American Law
(01/01/05)
Law, Liberty, and Abortion (10/31/05)
Don’t Just Take My Word for It (11/07/05)

Some Thoughts about Liberty

I have been working on a long post about the meaning of liberty. In the course of looking for sources I came across a provocative article by Alain de Benoist, “Gemeinschaft and Gesellschaft: A sociological view of the decay of modern society” (originally published in The Mankind Quarterly, Vol. 34, No. 3, pp. 263-270). Here are some excerpts to ponder:

Peaceful modern societies which respect the individual evolved from age-old familistic ties. The transition from band-type societies, through clan and tribal organizations, into nation-states was peaceful only when accomplished without disruption of the basic ties which link the individual to the larger society by a sense of a common history, culture and kinship. The sense of “belonging” to a nation by virtue of such shared ties promotes cooperation, altruism and respect for other members. In modern times, traditional ties have been weakened by the rise of mass societies and rapid global communication, factors which bring with them rapid social change and new philosophies which deny the significance of the sense of nationhood, and emphasize individualism and individualistic goals. The cohesion of societies has consequently been threatened, and replaced by multicultural and multi-ethnic societies and the overwhelming sense of lost identity in the mass global society in which Western man, at least, has come to conceive himself as belonging. . . .

Fundamentally, classical liberalism was a doctrine which, out of an abstract individual, created the pivot of its survival. In its mildest form it merely emphasized individual freedom of action, and condemned excessive bureaucratic involvement by government. But praiseworthy though its defense of individual freedom was, its claim that the ideal system is that in which there is the least possible emphasis on nationhood leads to situations which in fact endanger the freedom of the individual. In its extreme form, classical liberalism has developed into universal libertarianism, and at this point it comes close to advocating anarchy.

From the sociological standpoint, in its extreme form, modern internationalist liberalism defines itself totally in terms of the gesellschaft society of Tonnies[*]. It denies the historical concept of the nation state by rejecting the notion of any common interest between individuals who traditionally shared a common heritage. In the place of nationhood it proposes to generate a new international social pattern centered on the individual’s quest for optimal personal and economic interest. Within the context of extreme liberalism, only the interplay of individual interests creates a functional society – a society in which the whole is viewed only as a chance aggregate of anonymous particles. The essence of modern liberal thought is that order is believed to be able to consolidate itself by means of all-out economic competition, that is, through the battle of all against all, requiring governments to do no more than set certain essential ground rules and provide certain services which the individual alone cannot adequately provide. Indeed, modern liberalism has gone so far along this path that it is today directly opposed to thee goals of classical liberalism and libertarianism in that it denies the individual any inalienable right to property, but still shares with modern liberalism and with libertarianism an antagonism toward the idea of nationhood. Shorn of the protection of a society which identifies with its members because of a shared national history and destiny, the individual is left to grasp struggle for his own survival, without the protective sense of community which his forebears enjoyed since the earliest of human history.

Decadence in modern mass multi-cultural societies begins at a moment when there is no longer any discernable meaning within society. Meaning is destroyed by raising individualism above all other values because rampant individualism encourages the anarchical proliferation of egotism at the expense of the values that were once part of the national heritage, values that give form to the concept of nationhood and the nation state, to a state which is more than just a political entity, and which corresponds to a particular people who are conscious of sharing a common heritage for the survival of which they are prepared to make personal sacrifices.

Man evolved in cooperating groups united by common cultural and genetic ties, and it is only in such a setting that the individual can feel truly free, and truly protected. Men cannot live happily alone and without values or any sense of identity: such a situation leads to nihilism, drug abuse, criminality and worse. With the spread of purely egotistic goals at the expense of the altruistic regard for family and nation, the individual begins to talk of his rights rather than his duties, for he no longer feels any sense of destiny, of belonging to and being a part of a greater and more enduring entity. He no longer rejoices in the secure belief that he shares in a heritage which it is part of his common duty to protect – he no longer feels that he has anything in common with those around him. In short, he feels lonely and oppressed. Since all values have become strictly personal, everything is now equal to everything; e.g., nothing equals nothing.

“A society without strong beliefs,” declared Regis Debray in his interview with J.P. Enthoven in Le Nouvel Observateur, (October 10, 1981), ” is a society about to die.” Modern liberalism is particularly critical of nationalism. Hence, the question needs to be raised: Can modern liberal society provide strong unifying communal beliefs in view of the fact that on the one hand it views communal life as nonessential, while on the other, it remains impotent to envision any belief – unless this belief is reducible to economic conduct? . . .

There are two ways of conceiving of man and society. The fundamental value may be placed on the individual, and when this is done the whole of mankind is conceived as the sum total of all individuals – a vast faceless proletariat – instead of as a rich fabric of diverse nations, cultures and races. It is this conception that is inherent in liberal and socialist thought. The other view, which appears to be more compatible with man’s evolutionary and socio-biological character, is when the individual is seen as enjoying a specific biological and culture legacy – a notion which recognizes the importance of kinship and nationhood. In the first instance, mankind, as a sum total of individuals, appears to be “contained” in each individual human being; that is, one becomes first a “human being,” and only then, as by accident, a member of a specific culture or a people. In the second instance, mankind comprises a complex phylogenetic and historic network, whereby the freedom of the individual is guaranteed by the protection of family by his nation, which provide him with a sense of identity and with a meaningful orientation to the entire world population. It is by virtue of their organic adherence to the society of which they are a part that men build their humanity. . . .

Furthermore, proponents of nationhood contend that a society or a people can survive only when: a) they remain aware of their cultural and historical origins; b) when they can assemble around a mediator, be it individual, or symbolic, who is capable of reassembling their energies and catalyzing their will to have a destiny; c) when they can retain the courage to designate their enemy. None of these conditions have been realized in societies that put economic gain above all other values, and which consequently: a) dissolve historical memories; b) extinguish the sublime and eliminate subliminal ideals; c) assume that it is possible not to have enemies.

The results of the rapid change from national or tribal-oriented societies to the modern, anti-national individualism prevalent in contemporary “advanced” societies have been very well described by Cornelius Castoriadis: “Western societies are in absolute decomposition. There is no longer a vision of the whole that could permit them to determine and apply any political action . . . Western societies have practically ceased to be [nation] states . . . Simply put, they have become agglomerations of lobbies which, in a myopic manner, tear the society apart; where nobody can propose a coherent policy, and where everybody is capable of blocking an action deemed hostile to his own interests.” (Liberation, 16 and 21 December, 1981).

Modern liberalism has suppressed patriotic nationhood into a situation in which politics has been reduced to a “delivery service” decisionmaking process resembling the economic “command post,” statesmen have been reduced to serving as tools for special interest groups, and nations have become little more than markets. The heads of modern liberal states have no options but to watch their citizenry being somatized by civilizational ills such as violence, delinquency, and drugs. . . .

Patriotic nationhood does not target the notion of “formal liberties, ” as some rigorous Marxists do. Rather, its purpose is to demonstrate that “collective liberty,” i.e., the liberty of peoples to be themselves and to continue to enjoy the privilege of having a destiny, does not result from the simple addition of individual liberties. Proponents of nationhood instead contend that the “liberties” granted to individuals by liberal societies are frequently nonexistent; they represent simulacra of what real liberties should be. It does not suffice to be free to do something. Rather, what is needed is one’s ability to participate in determining the course of historical events. Societies dominated by modern liberal traditions are “permissive” only in so far as their general macrostability strips the populace of any real participation in the actual decision-making process. As the sphere in which the citizenry is permitted to “do everything” becomes larger, the sense of nationhood becomes paralyzed and loses its direction.

Liberty cannot be reduced to the sentiment that one has about it. For that matter, both the slave and the robot could equally well perceive themselves as free. The meaning of liberty is inseparable from the founding anthropology of man, an individual sharing a common history and common culture in a common community. Decadence vaporizes peoples, frequently in the gentlest of manners. This is the reason why individuals acting as individuals can only hope to flee tyranny, but cooperating actively as a nation they can often defeat tyranny.

__________
* Editor’s note: The reference is to German sociologist Ferdinand Tönnies (1855-1936), who was best known for his theory of Gemeinshcaft and Gesellschaft. Wikipedia explains:

Tönnies distinguished between two types of social groupings. Gemeinschaft — often translated as community — refers to groupings based on a feeling of togetherness. Gesellschaft — often translated as society — on the other hand, refers to groups that are sustained by an instrumental goal. Gemeinschaft may by exemplified by a family or a neighbourhood; Gesellschaft by a joint-stock company or a state.

. . . Following his “essential will” (“Wesenwille“), an actor will see himself as a means to serve the goals of social grouping; very often it is an underlying, subconscious force. Groupings formed around an essential will are called a Gemeinschaft. The other will is the “arbitrary will” (“Kürwille“): An actor sees a social grouping as a means to further his individual goals; so it is purposive and future-oriented. Groupings around the latter are called Gesellschaft. Whereas the membership in a Gemeinschaft is self-fulfilling, a Gesellschaft is instrumental for its members. . . .

Oh, *That* Liberal Media

Suspect Arrested in Wash. Mall Shootings. So says the headline on the AP story, which tells us that

The gunman came out of the Sam Goody music store without a gun and surrendered to the SWAT team. . . .

Suspect, my foot. That’s like saying Mohammed Atta was a suspect in the 9/11 attacks, or that Osama bin Laden is suspected of having ordered the attacks. The headline should read Gunman Arrested in Wash. Mall Shootings.

The press plays nice with known criminals, then uses its headlines and editorials news stories to convict its political opponents (i.e., conservatives) of evil motives, malfeasance, and incompetence. All in a day’s work.

Red vs. Blue Charity

From Yahoo! News:

“We believe that generosity is a function of how much one gives to the ability one has to give,” said Martin Cohn, a spokesman for the Catalogue for Philanthropy, a Boston-based nonprofit that publishes a directory of nonprofit organizations.

Using that standard, the 10 most generous states were, in descending order, Mississippi, Arkansas, South Dakota, Oklahoma, Tennessee, Alabama, Louisiana, Utah, South Carolina and West Virginia.

The 10 stingiest, starting from the bottom, were New Hampshire, Massachusetts, New Jersey, Rhode Island, Wisconsin, Connecticut, Minnesota, Colorado, Hawaii and Michigan.

Some New Englanders, of course, don’t like the result, so they have concocted their own measures of charitableness. But the Catalogue’s method strikes me as right. And what does it tell us? This:

Most Generous States (ranked from most-to-less generous; percentage of popular vote for Bush in 2004 in parentheses)

Mississippi (60%)
Arkansas (54%)
South Dakota (60%)
Oklahoma (66%)
Tennessee (57%)
Alabama (63%)
Louisiana (57%)
Utah (71%)
South Carolina (58%)
West Virginia (56%)

Least Generous States (ranked from least-to-more generous; percentage of popular vote for Bush in 2004 in parentheses)

New Hampshire (49%)
Massachusetts (37%)
New Jersey (46%)
Rhode Island (39%)
Wisconsin (49%)
Connecticut (44%)
Minnesota (48%)
Colorado (53%)
Hawaii (45%)
Michigan (48%)

So much for those mean-spirited, Bible-thumping Republicans.

Abortion and the Slippery Slope

I differ with many of my fellow libertarians on several issues, most notably the origin of rights, abortion, same-sex marriage, and preemptive war. (Go here for my views on the origin of rights; go here and follow the links for my views on abortion and same-sex marriage; go here and follow the links for my views about war.) In spite of my unorthodox stance on those issues, my perspective is libertarian and I take my positions in the defense of liberty.

With that introduction, I quote from a comment I left recently at Catallarchy on the subject of “Abortion and Federalism”:

On the pro-abortion side there are (mostly) big-government “liberals” and “centrists” who hypocritically think that in the case of abortion (as well as a few other matters of personal interest to them) government should keep its hands off something. They are joined by many if not most libertarians, whose support for abortion seems to hinge on the notion that (a) a fetus doesn’t become a person with rights until it reaches a certain stage of development (as if there were not continuous development from conception to birth) or (b) a fetus (until some arbitrary stage of development) is its mother’s property to do with as she pleases (which, by extension, would vindicate Andrea Yates, who simply chose to murder her five sons at an arbitrary post-natal stage of development).

What few libertarians (unlike conservatives) seem to give any thought to is the possibility that abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

And that leads me to an article in The New York Times, “The Problem With an Almost-Perfect Genetic World” (free registration required). I quote:

Heralded in the Nov. 10 issue of The New England Journal of Medicine, the new prenatal test [for Down syndrome] provides earlier, more reliable results for all women than the current test, which is routinely offered to only older women who are at higher risk. But for people with Down syndrome and the cluster of other conditions subject to prenatal screening, the new test comes with a certain chill. . . .

“We’re trying to make a place for ourselves in society at a time when science is trying to remove at least some of us,” said Andrew Imparato, president of the American Association of People With Disabilities, who suffers from bipolar disorder. “For me, it’s very scary.” . . .

Lisa Hedley, whose 10-year-old daughter has dwarfism, said the condition is usually not detected prenatally. It is so rare that it has traditionally not been considered worth the expense of the genetic test. Soon, though, pregnant women may be offered a gene-chip technology that can perform hundreds of tests at once for a few hundred dollars. . . .

Supporters of abortion are especially wary of wading into a discussion over the ethics of prenatal testing, lest they be seen as playing into the opposing side in the fraught national debate over abortion rights. But advocates for people with disabilities are troubled by how much faster the science of prenatal testing is advancing than the public discussion of how it ought to be used.

If no child is ever born again with the fatal childhood disease Tay-Sachs, many might see that as a medical triumph. But what about other conditions, including deafness, which some do not consider to be a disability, and Huntington’s Disease, an adult-onset neurological disorder?

Among the difficult choices facing prospective parents in coming years, genetics researchers say, will be the ability to predict the degree of severity in chromosomal abnormalities like Down syndrome, which can cause mild to moderate retardation.

“Where do you draw the line?” said Mark A. Rothstein, director of the Bioethics Institute at the University of Louisville School of Medicine. “On the one hand we have to view this as a positive in terms of preventing disability and illness. But at what point are we engaging in eugenics and not accepting the normal diversity within a population?” . . .

Of course, as more conditions are diagnosed in utero, many parents may simply decline testing, or use the information to prepare themselves. But studies have shown that women are considerably more likely to terminate their pregnancies if they know of fetal anomalies.

The slippery slope of eugenics is here and we are sliding down it.

The Faces of Appeasement

UPDATED TWICE, BELOW

Three members of the U.S. House of Representatives voted “yes” on H. Res. 571 (“Expressing the sense of the House of Representatives that the deployment of United States forces in Iraq be terminated immediately”):

U.S. Representative Cynthia McKinney, 4th District of Georgia

U.S. Representative José E. Serrano, 16th District of New York

U.S. Representative Robert Wexler, 19th District of Florida

Six other Democrats voted “present” — which I take to be “yes” in a whisper. Those Democrats are:

Michael Capuano, Massachusetts 8th
William Clay Jr., Missouri 1st
Maurice Hinchey, New York 22nd
James McDermott, Washington 7th
Jerrold Nadler, New York 8th
Major Owens, New York 11th

Many other Democrats — including one John Murtha (Pennsylvania 12th) — would like to have voted “yes” but claimed that they voted “no” because the resolution was a Republican “trap.” Well, yes, it was a trap. You could vote “yes” and reveal yourself as an appeaser or you could vote “no” and send the enemy the right message: America is not about to back away from the Middle East.

UPDATE: Professor Bainbridge, an avowed conservative and quasi-Republican, takes issue with what he calls the GOP’s “stunt”:

So the House GOP pulled off its little stunt last night, winning by havings its own proposal for immediate withdrawal from Iraq voted down 403-3. . . .

Alternatively, the House GOP could have been honest and given Murtha an up-or-down vote on what he actually proposed:

  • To immediately redeploy U.S. troops consistent with the safety of U.S. forces.
  • To create a quick reaction force in the region.
  • To create an over- the- horizon presence of Marines.
  • To diplomatically pursue security and stability in Iraq.

1. There’s no practical difference between immediate withdrawal and “redeployment” consistent with the safety of U.S. forces. We know what “redeployment” really means, and who would think that a withdrawal that might begin immediately would be accomplished without an effort to ensure the safety of the withdrawing forces?

2. A quick-reaction force to do what? If it isn’t necessary to have troops in Iraq, why would we need to have them elsewhere in the region?

3. Ditto for those over-the-horizon Marines.

4. Pursuing diplomacy with thugs is a pipe dream. Ask Neville Chamberlain. Ask Ariel Sharon. Diplomacy is best pursued by talking softly, carrying a big stick, and using it as necessary.

The enemy will have noticed that Murtha’s proposal would effectively withdraw American forces from combat with no assurance that they would return. The enemy will have noticed that Murtha’s proposal says nothing about actually ensuring the security of Iraq. It’s a poll-driven plea for the withdrawal of U.S. forces, whether or not the job is done and regardless of the consequences for Iraqis or for the rest of the Middle East.

Not only is Bainbridge naïve about Murtha’s proposal, he’s also naïve about the need for the GOP to do precisely what it did, given the din of defeatist rhetoric coming from Democrats and knee-jerk anti-war factions in the U.S. The House leadership cleverly delivered a message to the enemy: No matter what you hear to the contrary, we’re not bugging out of Iraq.

Some may call it a trap; some may call it a stunt; I call it a job well done.

UPDATE 2: Patterico and Dafydd ab Hugh agree with me.

Conservatism and Capitalism

From my second comment on a post at Right Reason:

Conservatism of the Burkean-Hayekian kind isn’t an ideology of the status quo, it’s an ideology of voluntary social evolution — and capitalism is one of the great manifestations of voluntary social evolution. Capitalism favors accomplishment rather than class, rank, and ritual (unlike European conservatism). Capitalism most decidedly does not exploit workers: it enables them to progress materially in ways that caste systems, socialism, and welfarism cannot because they stifle accomplishment and reward stupidity, incompetence, and ignorance.

Double Jeopardy, in Disguise

First it was O.J., now it’s Robert Blake: “a civil jury decided Friday the tough-guy actor was behind the slaying, and ordered him to pay her children $30 million in damages.” I have no sympathy for either of those low-lifes, but the actions taken against Simpson and Blake strike me as a form of double jeopardy. I thought so at the time of Simpson’s civil trial; I still think so, now that the same thing has happened to Blake.

Not coincidentally, here’s one of the provisions of my proposed Constitution:

A citizen of the United States of America may not be . . . brought before a criminal or civil court to answer for the same act or acts that had been judged previously, under any rubric of law, by any criminal or civil court of any State or the United States of America.

That provision dates from the first version of the proposed Constitution, which I published in the pre-blog version of Liberty Corner, five or six years ago.