My View of Warlordism, Seconded

UPDATED 12/18/05

Arnold Kling writes:

The conventional view [of anarchy], which I share, is that peaceful anarchy is insufficiently stable. It gives way to warlordism. Warlordism means a situation in which there is no rule of law. A warlord rules by rewarding his friends and punishing his enemies.

In my view, it only takes one warlord to break up a peaceful anarchy. Once one warlord becomes successful, then it is easy for a second warlord to recruit followers, because people either envy or fear the followers of the first warlord. This process continues until everyone is driven to follow warlords.

To break a warlord equilibrium, you need government. That is the Hobbesian solution–a Leviathan that is capable of suppressing the “war of all against all.”

Government is flawed, . . . [but] I would not want to risk a descent into warlordism.

I ended a post on the same subject with this thought:

A wasteful, accountable, American state is certainly preferable to an efficient, private, defense agency in possession of the same military might. Hitler and Stalin, in effect, ran private defense agencies, and look where that landed the Germans and Russians. Talk about subjugation.

UPDATE: The quotation from Arnold Kling is taken from a series of exchanges between he and his co-blogger Bryan Caplan. There are two more entries in the series, here (Caplan) and here (Kling). Worth reading. Kling has the better of it, in my view.

Give Me Liberty or Give Me Non-Aggression?

Are you a libertarian or merely an adherent of the non-aggression principle? (There is a difference, as I will come to.) I have devised a test to help you decide which you are. First, consider this hypothetical situation:

1. In Country A (just as in Country B), the armed forces are controlled by the state. (I don’t want to get off onto the tangent of whether war is more or less likely if defense is provided by private agencies.)

2. The only restriction on the liberty of Country A’s citizens is that they must pay taxes to support their armed forces. Country B’s citizens own no property; their jobs are dictated by the state; their income is dictated by the state; and all aspects of their lives are regimented by state decrees.

3. Though Country A’s armed forces are underwritten by taxes, the members of the armed forces are volunteers. The members of Country B’s armed forces are conscripts, and Country B’s armed forces are, in effect, supplied and equipped by slave labor.

4. Country A would liberate Country B’s citizens, if it could. Country B would subjugate or kill Country A’s citizens, if it could.

What say you, then, to the following questions?

1. If Country B attacks Country A, what limits (if any) would you place on the measures Country A might take in its defense? Specifically:

a. Are civilian casualties in Country B acceptable at all?

b. Are civilian casualties in Country B acceptable if they’re the result of mistakes on Country A’s part or the unavoidable result of Country A’s attacks on Country B’s armed forces and infrastructure?

c. Is the deliberate infliction by Country A of civilian casualties in Country B acceptable as long as Country A’s leaders reasonably believe that the infliction of those casualties — and nothing else — will bring about the defeat of Country B? (Assume, here, that Country A’s leaders try to inflict only the number of casualties deemed necessary to the objective.)

(Assume, for purposes of the next two questions, that Country A inflicts casualties on Country B’s civilians only to the extent that those casualties are the result of mistakes or unavoidable collateral damage.)

2. Should Country A attack Country B if Country A concludes (rightly or wrongly, but in good faith) that Country B is about to attack, and if Country B strikes first it is likely to:

a. win a quick victory and subjugate Country A?

b. inflict heavy casualties on Country A’s citizens?

3. Should Country A attack Country B if Country A concludes (rightly or wrongly, but in good faith) that Country B is developing the wherewithal to attack, and if Country B strikes first it is likely to:

a. win a quick victory and subjugate Country A?

b. inflict heavy casualties on Country A’s citizens?

What I’m trying to get at is whether libertarians should value non-aggression (which serves liberty only when it is an agreed and enforceable principle within a society) over liberty itself. In light of that distinction, my answers are:

1. a. Yes
1. b. Yes
1. c Yes
2. a. Yes
2. b. Yes
3. a. Yes
3. b. Yes

In short, give me liberty. Non-aggression is for those who cannot tell — or refuse to see — the difference between an imperfect nation of laws and its manifestly lawless enemies.

Related posts: War, Self-Defense, and Civil Liberties (a collection of links)

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.

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.

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.

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. . . .

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.

Political Taxonomies

Thanks to a comment by Mr. Meval on a post at Catallarchy, I found this:

My own, simpler, taxonomy — which anarcho-capitalists will reject — looks like this:

• Anarchy — “might makes right” without an effective state to referee the fight

• Libertarianism — the minimal state for the protection of life, property, and liberty

• Communitiarianism — the regulation of private institutions to produce “desirable” outcomes in such realms as income distribution, health, safety, education, and the environment

• Statism — outright state control of most institutions, reached either as an extension of communitarianism or via post-statist anarchy or near-anarchy, as in Stalin’s Russia, Hitler’s Germany, and Mao’s China.

Oh, That Privacy Right

I have written here and here, for example, about the “right to privacy” conjured in Roe v. Wade and its precedents. Of course, judge-made rights can be overturned as quickly as judges want to overturn them. Tom Smith of The Right Coast explains:

Skeptics about Roe v. Wade have long railed about the invention of a right of sexual privacy by the US Supreme Court in that controversial case. Where was that controversial right supposed to come from? Sex, let alone abortion, is mentioned nowhere in the Constitution. Yet find such a right the Court did. Legal scholars wondered, as well they might, where such a right, once invented, would find its limit. Does the right of sexual privacy imply a right to gay marriage? To any form of sexual conduct, no matter how alarming?

Now, in a bold decision positively reeking of integrity, Judge Stephen Reinhardt has laid down the law, finally proclaiming that this murky right goes so far, but no further. Strict constructionists everywhere may breathe a sigh of relief. How ironic, and indeed inspirational, it is that this paradoxical opinion comes from a judge some brand as among the most liberal and activist on the ever amusing Ninth Circuit.

The case arose when irate parents objected to the Palmdale School District’s giving their children, including first graders, a questionaire including sexually explicit questions, along the lines of whether the children played with their “private parts”, had sexual feelings, and so on. Parents asserted a constitutional right not to have the school introduce young children, many of whom do not yet know where babies come from, to concepts such as masturbation, sexual abuse, and sex generally. However foolish the notion may be that parents should want to shield first graders from intrusive sexual investigation, one can understand how, in a world of expansive conceptions of sexual privacy, they could have imagined they had such a ridiculous privilege. But no more. They have been educated, as harshly as their children, by the Ninth Circuit. . . .

This is really an important lesson for everyone interested in constitutional law. We frequently jump to the conclusion that words like “privacy” mean what they mean in ordinary contexts. But this is not so. “Privacy” does not mean such things as a family exercising control over whether state employees ask their six year olds about their private parts and whether they ever touch them. (After all, what possible motive could a teacher have for posing such a question, other than a benign one? What possible dangers could such questions pose?) It means something much more complicated than that. Thus, the right to privacy includes the right to choose to terminate the life-like process of an otherwise about-to-be-born non-person person-like post-fetal entity, but not to control the early education of such entity in its early stages of personhood, once that small person or near-person has been put into the hands of the state educational system. That is, to strip the point of its many deeply intriguing nuances, you may kill the thing, but not control its education; the former is privacy, the latter is not.

The lesson is this: Judges will find rights where it’s convenient to find rights and they will repudiate rights where such rights might get in the way of the outcomes they want to achieve.

If only Judge Reinhardt’s “principled” view of privacy had been understood by the U.S. Supreme Court in 1965 (Griswold v. Connecticut) and 1973 (Roe v. Wade).

Law, Liberty, and Abortion

This an abridgement of a post at Liberty Corner II. It is complete but for long quotations from Supreme Court opinions.

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion — even before quickening — is treated thoroughly in Marvin Olasky’s Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured “privacy right” in order to legalize abortion. . . .

[excerpts of the majority opinion in Roe v. Wade]

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights — rights which are totally unrelated to abortion — and from strained precedents involving “penumbras” and “emanations,” a general right to privacy in order to find a “privacy” right to abortion. I have dissected a key precedent, Griswold v. Connecticut (1965), in the “Liberty” section of this post. It bears repeating that in drafting the Ninth Amendment Madison had in mind no particular unenumerated rights:

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.

It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

Underlying the majority’s sophistry was its typically “liberal” reluctance to place responsibility where it belongs, in the hands of those persons who (in almost all cases) conceive through engaging voluntarily in an act, the potential consequences of which are well known. Thus we read:

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception. . . .

[Justice White’s dissent, followed by excerpts of Justice Rehnquist’s concurring dissent]

Roe v. Wade is nothing more than an illogical, ill-founded, politically expedient position staked out by seven justices who were caught in the tide of “personal liberation.” That tide, which rose in the 1960s and has yet to fully recede, is powered by the perverse belief that liberty is to be found in license.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

The next step, or steps, should be to undo Roe v. Wade completely and then turn it around. The States have no basis for allowing abortion (except where a mother’s physical health or life are endangered) because to do so deprives the fetus (a person) of due process of law and equal protection under the law, in violation of the Fifth and Fourteenth Amendments.

Abortion is Anti-Libertarian

The demonstrable fact of Roe v. Wade‘s wrongness will not dissuade those libertarians who defend abortion as a extra-legal right. Unsophisticated, self-styled libertarian defenders of abortion hold an “anything goes” view of liberty that is in fact antithetical to liberty. They may call themselves libertarians, but they might as well be anti-war protesters who block traffic or “greens” who burn down ski lodges.

Liberty requires each of us to pursue happiness without causing harm to others, except in self-defense. Those libertarian defenders of abortion who bother to give the issue a bit of thought try to build a case for abortion around self-defense, arguing that a woman who aborts is defending herself, and that no one should question her act of self-defense.

The self-defense argument — which is sometimes billed as a property rights argument for — goes like this: A fetus is an “uninvited guest” in or “invader” of its mother’s body, which is the mother’s property. The mother may therefore do with the fetus as she will.

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]
It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

A fetus, in sum, cannot be treated as “property,” to be disposed of willy-nilly. A libertarian who argues otherwise can do so only by regarding the fetus a sub-human implantation for with the mother bears no responsibility. Such a libertarian might as well argue for a right to keep slaves or a right to dispose of dependent children and parents through involuntary euthanasia.

When that realization strikes home, the next step may be an appeal to the viability of the fetus. The argument that a fetus is “inviable” — and therefore somehow undeserving of life — until it reaches a certain stage of development is a circular argument designed to favor abortion. A fetus (except in the case of a natural miscarriage) is viable from the moment of conception until birth as long as it is not aborted. It is abortion that makes a fetus inviable. Abortion therefore cannot be excused on the basis of presumed inviability.

Drawing an arbitrary line, say, three months after conception does not change the fact that a life is a life. And if that arbitrary line can be drawn, why not draw it at birth or just after birth or at any time during a child’s life? Remember, we are arguing here about libertarian principles, not legal niceties. If a child is a mother’s “property” — or if a mother always has a right to “defend” herself from an “unwanted guest” (in her womb or in her home) — why stop at abortion in the first trimester? (Actually, the law hasn’t stopped it there, which is a point that I’ll come to when I discuss the slippery slope down which we’re headed.)

Where, then, lies a valid libertarian defense of abortion? In privacy? Not at all. Privacy, to the extent that it exists as right, cannot be a general right, as I have argued above. If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home, or better yet (for the murderer), as long as he murders his own children in his own home.

A “practical” libertarian might argue that legalizing abortion makes it “safer” (less dangerous to the mother), presumably because legalization ensures a greater supply of abortionists who can do the job without endangering the mother’s life, and at a lower price than a safe abortion would command without legalization. I’m willing to grant all of that, but I must observe that the same case can be made for legalizing murder. That is, a person with murderous intent could more readily afford to hire a professional who to do the job successfully and, at the same time, avoid putting himself at risk by trying to do the job himself. “Safety” is a rationalization for abortion that blinks at the nature of the act.

I am unable to avoid the conclusion that abortion is an anti-libertarian act of unjustified aggression against an innocent human being, an act that is undertaken for convenience and almost never for the sake of defending a mother’s life. Murder, too, is an act of convenience that is seldom justified by self-defense. Abortion, therefore, cannot be validated by mistaken appeals to self-defense, privacy, viability, and safety. Nor can abortion be validated (except legalistically) by a series of wrongly decided Supreme Court cases.

The Slippery Slope

If libertarians are to be faithful to libertarian principles, they must oppose the law even when — especially when — it puts convenience above principle. As I wrote here (modified language in brackets):

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Libertarians who applaud the outcomes of such cases as Griswold v. Connecticut and Roe v. Wade because those outcomes seem to advance personal liberty are consorting with the Devil of statism. Every time the state fails to defend innocent life it acquire a new precedent for the taking of innocent life.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

Not only can it happen in America, it is happening in America. Thus convenience does make killers of us all — or all of us who condone abortion and therefore encourage its accompanying eugenic evils.

CLICK HERE FOR THE FULL POST, WHICH INCLUDES RELEVANT PORTIONS OF SUPREME COURT OPINIONS.

Law, Liberty, and Abortion

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability” is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

VIII

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The [410 U.S. 113, 154] Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

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.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception.

Justice White’s dissent says it all:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of Â§ 26-1202(a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.

And here is a portion of Justice Rehnquist’s concurring dissent, in which he focuses on “privacy” and the applicability of the Fourteenth Amendment:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967). . . .. . . The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. . . .

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

Abortion is Anti-Libertarian

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]

It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

The Slippery Slope

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

"Equal Protection" and Homosexual Marriage

REVISED AT 2: 49 PM (CT) 10/30/05

The “equal protection” clause of the Fourteenth Amendment is getting quite a workout these days. In some jurisdictions, “equal protection” gives a homosexual person the same access to his or her “partner’s” company’s health-insurance plan as a spouse in a traditional marriage. In other jurisdictions, “equal protection” leads to the recognition of homosexual “marriage” on the same basis as traditional marriage. And on and on.

None of this would be happening if the “equal protection” clause hadn’t long ago been turned upside down by loose constructionists. What “equal protection” really means is this:

Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.

As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons. Instead, “equal protection” now means that everyone is entitled to the same outcome — the law be damned.

Consider, for example, an employer who is foolish enough to screen job applicants by administering tests that might, even by inference, measure intelligence. Why? Because such tests would expose the employer to a charge of racial discrimination, under the Civil Rights Act of 1964, under which it has become illegal for employers to make hiring decisions if the effect of those decisions (not the intent, but the effect) seems discriminatory.

The perverse logic of the current interpretation of the “equal protection” clause may be further illustrated by a (not so far-fetched) hypothetical. Many crimes carry a stiffer penalty if a perpetrator possesses a firearm in the commission of a crime. The current, perverted interpretation of the “equal protection” clause would eliminate the additional penalty for carrying a firearm on the ground that all criminals ought to be treated the same. Taken to the extreme, the current, perverted interpretation of the “equal protection” clause would de-criminalize crime on the ground that criminal statutes do not afford criminals “equal protection” of the law; that is, criminals go to jail while others go free. The logic of the current, perverted interpretation of the “equal protection” clause boils down to this: Legislatures may not attempt to legislate for the preservation and protection of a civil society (e.g., heterosexual marriage is good for society, potentially violent criminals are bad for society) if legislation somehow fails to treat all persons equally, even persons who are not the intended beneficiaries or targets of legislation.

Marriage, as an institution that comes under the jurisdiction of the States, should be governed by the laws of the States. A State court that decrees, without benefit of legislation, that marriage is available to homosexuals has made new law by applying the perverted meaning of the “equal protection” clause. A proper application of the “equal protection” clause by a State court would go something like this:

The legislature of this State, acting in accordance with the constitution of this State, has determined that marriage consists of a legal, binding, union between a man and a woman. Therefore, this court cannot institute homosexual marriage because to do so would dilute the benefits pertaining to marriage under the laws of this State, by requiring the State to transfer scarce resources to the support of homosexual unions, in violation of “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution of the United States. All who come under the purview of a constitutional law are entitled to the protection of that law. All who do not may petition the legislature for a more encompassing law.

And so, even though marriage is a State-controlled institution, it would be within the purview of the U.S. Supreme Court to overrule a State supreme court’s creation of a right to homosexual marriage without legislative authority. Why? Because the issue involved — “equal protection” — arises from an application of the U.S. Constitution.

Speaking of States’ Rights and Judge McConnell

I wrote recently that

I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

I’m reminded of the Stevens-Souter-Ginsburg-Breyer wing’s cynical appeal to States’ rights in Bush v. Gore. In Part I of Justice Ginsburg’s dissent (joined by Justices Stevens, Souter, and Breyer), she wrote “Rarely has this Court rejected outright an interpretation of state law by a state high court.” As if it were as simple as that.

Judge Michael McConnell, now considered a front-runner to replace Justice O’Connor, showed a much finer understanding of constitutional law when he wrote for OpinionJournal on Novemeber 24, 2000, about the then-unsettled case of Bush v. Gore:

One sentence of the Florida Supreme Court’s decision on hand recounts tells it all: “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.”

That is like saying, of a disputed umpire call in the World Series: “Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle.” In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.

Article II of the U.S. Constitution provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The Florida legislature has enacted a detailed election code, including an unambiguous deadline of seven days after the election for counties to report their results. No party to the litigation has argued that this statutory scheme is unconstitutional under either the federal or the state constitution.

As Judge McConnell pointed out on December 14, 2000, the majority in Bush v. Gore came to the right result but for the wrong reason:

[O]nly three justices–William Rehnquist, Antonin Scalia, and Clarence Thomas–were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices–even those presumably favorable to Mr. Gore. . . .

The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.

Amen to that.

Killing Conservatism in Order to Save It

EconoPundit quotes a Times column by David Brooks (not worth $50 a year to read online). A choice morsel:

Let’s start by remembering where conservatism was before Bush came on the scene. In the late 1990’s, after the failure of the government shutdown, conservatism was adrift and bereft of ideas.

Voters preferred Democratic ideas on issue after issue by 20-point margins.

Which was it David? Were conservatives bereft of ideas or did voters prefer Democrats’ “ideas.” Well, as Capital Freedom observes, ” Free handouts get more votes than free markets.” Democrats didn’t (and don’t) trade in ideas, they trade in bribery. The Bush-led GOP has simply followed suit.

The real problem in the late 1990s wasn’t that conservatives lacked ideas, but that those ideas didn’t happen to garner enough votes to defeat Bill Clinton and deliver overwhelming Republican control of Congress. But instead of regrouping around the functionally sound and widely accepted ideas of the “Contract with America,” the GOP largely abandoned its conservative principles and sold its soul for a few more votes, thus joining Democrats in the bribery game.

Brooks, who is either deluded or stupid, nevertheless quotes Bush’s defense of big government:

“Government should help people improve their lives, not run their lives,” Bush said. This is not the Government-Is-the-Problem philosophy of the mid-’90s, but the philosophy of a governing majority party in a country where people look to government to play a positive but not overbearing role in their lives.

In other words, the GOP should bribe voters, but somehow restrain its bribery so that it’s not quite as egregious as the kind of bribery practiced by Democrats. That simply won’t work. The bribed (i.e., voters) won’t let government off the hook unless and until they understand how bribery works against their own interests. The only way to get government out of our lives (or to push it toward the exit) is to oppose it in the first place, and to explain why voters should join in that opposition.

But Brooks applauds Bush’s sophistry, even though it is indistinguishable (in essence) from the Left’s excuses for big government: Government just needs to “fix things” because markets don’t always get it right. People just can’t be trusted to take care of themselves. Brooks fails to see (or wishes not to say) that Bush has simply adopted the Democrats’ old game plan: Tax, spend, regulate, elect, tax, spend, regulate, elect, ad infinitum.

Well, Brooks’s column proves one thing, with finality: He’s a so-called conservative who is devoid of valid ideas, valid logic, and intellectual honesty. Brooks would kill true conservatism in the name of saving it. What’s worse, he’d believe that he had saved it.

States’ Rights and Skunks

In light of the preceding post, I want to make it perfectly clear that I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

When it comes to the advancement of liberty, it is only fitting and proper to deploy every legal argument at one’s disposal — as I have tried to do in the preceding post. The old saying goes that you can’t win a peeing contest with a skunk (i.e., the Left wing of the Supreme Court). My version goes like this: Sometimes you can’t avoid a peeing contest with a skunk; that’s when you stand back a safe distance and blast it with a fire hose.

When it comes to the defense of liberty, a timid bow to States’ rights is no virtue and an attack on States’ rights isn’t always a vice.

Kelo, Federalism, and Libertarianism

UPDATED BELOW

Doug at Below the Beltway joins Scott Scheule of Catallarchy in arguing that Kelo v. City of New London was rightly decided in the 2004-5 term of the U.S. Supreme Court. The Supremes, as you undoubtedly recall, upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The rationale, in brief: The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

Doug and Scott are buying into the argument that Kelo was rightly decided on federalism grounds; that is, the central government oughtn’t intrude in matters best left to State and local governments. Scott says, in part, that

Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state’s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.

I propose that, by the exact same token, the true test of your belief in states’ rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.

Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?

There is a deep tension here.

And though, as Justice Thomas quite rightly perceived, “something has gone seriously awry” with the Court’s interpretation of much of the Constitution, I disagree there is something awry with the interpretation of this particular provision.

I expect this post to make me exceedingly [un?]popular in libertarian circles.

The post should make Scott exceedingly unpopular (temporarily, one hopes) because of its wrongheadedness. Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he’s a federalist or a libertarian.

Moreover, Kelo was not decided rightly, even when viewed through the lens of federalism. The key can be found in Doug’s incorrect assertion that

[t]he 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment “incorporated” most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.

Now, whatever you may think about “incorporation,” certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It’s important to remember that the U.S. Constitution wasn’t meant (or written) as a “set of rules” applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.

Consider the Fifth Amendment, specifically:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It was well understood in 1791 that the prosecution of almost all crimes was a matter for State action, which is why the Fifth Amendment specifically enumerates the kinds of cases that then came under the jurisdiction of the central government: “in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Thus, given its main focus on crime and punishment, the Fifth Amendment clearly applies to the States as well as to the central government (no “incorporation” is necessary, thank you). The position of the “takings clause” — in a string of clauses that clearly apply to the States — means that the Fifth Amendment, from the moment of its adoption, was meant to proscribe takings by States (and their subordinate jurisdictions), when such takings aren’t for “public use” (which means public use).

Kelo was wrongly decided, period.

UPDATE: Doug, as I hoped he would, has posted a reply to this post. He responds, first, to my statement that one must decide whether one is a libertarian or a federalist:

[T]he choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.

Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.

Fine, but that leaves libertarians to fight for liberty while federalists fight for States’ rights, whether or not those rights are compatible with liberty.

In any event, the original Constitution does say some things about the powers of the States, not the least of which is the second clause of Article VI:

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.

Madison’s view was that the federal Bill of Rights ought to be supreme. I quote from Irving Brant’s The Bill of Rights: Its Origin and Meaning (1965 edition, pp. 49-50):

The next contention Madison took up [in 1789, as chairman of the House committee to consider and report amendments to the Constitution] was that a federal Bill of Rights was not needed because state declarations of rights were still in force. The solemn acts of the people in putting such declarations in their state constitutions, it had been said, could not be annihilated by their later establishment of a general government whose express purpose was “securing to themselves and posterity the liberties they had gained by an arduous conflict.” (Here again the objectives of the American Revolution were defined in terms of the guarantees contained in bills of rights.)

Madison found this objection inconclusive. In the first place it was too uncertain ground on which to leave a matter considered so important by the people. “Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.”

Here Madison refuted in advance an argument later utilized to undermine the basic freedoms — the contention that the defects in state bills of rights should be used to measure the purpose, force and extent of the federal guarantees. In reality, those defects were used as an argument for adoption of a strong federal bill of rights, instead of being evidence of weakness in the one adopted.

This brought Madison to the question of enforcement. It had been said that a federal provision would be useless “because it was not found effectual in the constitution of the particular States.” True it was that there were few states in which the most valuable rights had not been violated. But it did not follow that they had no salutary effect against the abuse of power. He saw two great protective agencies that would support the federal guarantees of liberty. . . .

The other protection was to come from the states:

“[T]here is the great possiblilty that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people’s liberties.”

. . . The Constitution, [Madison] told the House, already contained wise and proper restrictions on the states in the words “No State shall pass any bill of attainder, ex post facto law, etc.” There was more danger, he thought, of those powers being abused by state governments than by that of the United States.

Madison wanted the States to be bound by the Bill of Rights, morally as well as legally. Congress did restrict the applicability of the First Amendment to acts of Congress, but mainly because it saw First Amendment rights as being adequately protected by State constitutions (even though they weren’t always). It is telling that Congress did not insert similarly restrictive language into Amendments II through VIII, that is, the other original amendments that prescribe specific rights. The omission speaks volumes about original intent, as do Madison’s views.

If Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833), had chosen to invoke Madison’s original intent, we would not be having this argument. The “takings clause” would have been understood to apply to the States and their subordinate jurisdictions. We would have been spared piecemeal “incorporation” of the Bill of Rights, which has yet to apply the “takings clause” to the States, as it should have in 1833.

I conclude that Barron was wrongly decided by a Chief Justice who went against the accepted view of the Bill of Rights. I again quote Brant, writing about the adoption of the Fourteenth Amendment (p. 322):

. . . Bingham . . . had the erroneous impression that the first eight amendments were intended to restrict both the federal and state governments. That belief was widely held among legislators, laity and lawyers during the first half century after the amendments were adopted, and it persisted even after Marshall’s Supreme Court decided in Barron v. Baltimore (1833) that they did not apply to the states.

Why does Brant assert that there was from 1791 until 1833 (and even later) a prevailing “erroneous” impression about the scope of the first eight amendments? Here, Brant goes in a circle. The prevailing impression was erroneous because of Barron, which was decided 42 years after the adoption of the Bill of Rights. But Barron is where Brant rests his case. In particular, Brant says (p. 326)

that in a Constitution setting up a government of limited powers, any “limitations of power, if expressed in general terms,” must apply to the government created by that instrument. [The quotation is from Marshall’s opinion in Barron.]

But the first eight amendments are decidely not general. Nor does the original Constitution simply limit the power of the central government, it also limits the powers of the States both generally (in Article VI) and specifically (in Articles I and IV).

Brant hangs his hat on Barron, which flies in the face of Madison’s intent and 42 years of acceptance of that intent by “legislators, laity and lawyers.”

In sum, Kelo was wrongly decided because Barron was wrongly decided.
__________
* If you still think that the Bill of Rights restrains only the central government, and not the States, read Amendments II, IV, V, VI, VII, VIII, and X together:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Barking Up the Wrong Libertarian

Diana Hsieh (Noodle Food) points to an article at The Ayn Rand Institute‘s site by Peter Schwartz, in which Schwartz asserts this:

Libertarianism belligerently rejects the very need for any justification for its belief in something called “liberty.” It repudiates the need for any intellectual foundation to explain why “liberty” is desirable and what “liberty” means. Anyone from a gay-rights activist to a criminal counterfeiter to an overt anarchist can declare that he is merely asserting his “liberty” — and no Libertarian (even those who happen to disagree) can objectively refute his definition. Subjectivism, amoralism and anarchism are not merely present in certain “wings” of the Libertarian movement; they are integral to it. In the absence of any intellectual framework, the zealous advocacy of “liberty” can represent only the mindless quest to eliminate all restraints on human behavior — political, moral, metaphysical. And since reality is the fundamental “restraint” upon men’s actions, it is nihilism — the desire to obliterate reality — that is the very essence of Libertarianism.

I refuse to be lumped with the kind of libertarian to whom Schwartz refers, namely, the libertarian who is devoted to a mindless, “anything goes,” libertarianism. For more, read my series, “Practical Libertarianism for Americans,” which I summarize here. See especially Part III of the series (“The Origin and Essence of Rights“) and sample my unorthodox libertarian positions at this collection of links.

My bottom line: True liberty — the kind of liberty that advances happiness — is incompatible with the removal of restraints on human behavior. If that makes me a Burkean conservative, in the mold of Friedrich Hayek, so be it.

But methinks that Schwartz vents his spleen on an increasingly uninfluential branch of libertarianism — the anything-goes absolutists who adhere to anarcho-capitalism. I call them “fundamentalist” libertarians because their libertarianism is rooted in a priori beliefs that have little to do with the facts of human nature. I have addressed their baseless dogmas in many posts, including these:

Libertarian Nay-Saying on Foreign and Defense Policy (06/29/04)
Libertarian Nay-Saying on Foreign and Defense Policy, Revisited (07/23/04)
An Aside about Libertarianism and War (08/02/04)
More about Libertarian Hawks and Doves (09/24/04)
Defense, Anarcho-Capitalist Style (09/26/04)
The State of Nature (12/05/04)
Getting Neolibertarianism Wrong (04/19/05)
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense (04/22/05)
The Legitimacy of the Constitution (05/09/05)
Another Thought about Anarchy (05/10/05)
Anarcho-Capitalism vs. the State (05/26/05)
Rights and the State (06/13/05)
The Essential Case for Consequentialist Libertarianism (07/10/05)
But Wouldn’t Warlords Take Over? (07/26/05)
Sorting Out the Libertarian Hawks and Doves (07/27/05)
A Paradox for Libertarians (08/04/05)
A Non-Paradox for Libertarians (08/15/05)
Liberty or Self-Indulgence? (10/10/05)

Thanks to Diana Hsieh for calling my attention to an Objectivist essay that comes fairly close to echoing my brand of libertarianism. I say “fairly close” because Schwartz appeals to a priori judgments about moral values, judgments which — like those of “fundamentalist” libertarians — seem unanchored in reality.

Further Erosion of the Employment Relationship

UPDATED TWICE BELOW

From the law firm of McGuireWoods:

The National Labor Relations Board recently held that an employee’s statements to a local newspaper and subsequent postings on an Internet message board in the context of labor organizing were protected activity under the National Labor Relations Act.

Following the purchase of a manufacturing facility and subsequent layoff of roughly 200 employees by the new owner, the union attempting to organize the facility’s employees approached a retained employee to talk to a newspaper about the firings. The newspaper quoted the employee that the layoffs “left gaping holes in this business”. The company warned the employee that such comments violated the employee handbook because they were disparaging to the company, and that the employee would be fired if he did it again. Two weeks later, the same employee responded to an anti-union posting on the newspaper’s internet message board. Among other statements, the employee stated in his post that the company was “being tanked by a group of people that have no ability to manage it.” He was fired soon after, and the union filed an unfair labor practice.

Affirming the statement that management “cannot be too thin-skinned,” the Board affirmed the ALJ’s decision that the activity was protected for three reasons. First, the newspaper quote and internet posting both involved employment matters. Second, there was a sufficient link between the statements and the ongoing controversy. Finally, the Board ruled that the comments were “not so egregious” as to fall outside the realm of protected activity.

Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members. It takes a lot of specious reasoning to hold for the employee in the case cited by McGuireWoods. First, the newspaper quote and internet posting were statements by the employee, not the employer. Second, the employee made the link between the statements and the “ongoing controversy.” Finally, the employee’s statements could be found to be “not so egregious” only by a body that is already biased against employers. In sum, the employee bad-mouthed his employer and got away with it simply because of an “ongoing controversy” about unionization. It’s an invitation to disgruntled employees to incite unionization. Apparently almost anything goes under the cover of an effort to unionize a workplace.

Is there a free-speech issue involved? Not at all. The Constitution’s guarantee of freedom of speech is — or was intended to be — nothing more than a guarantee that government cannot suppress speech. Of course, that guarantee has been vitiated by restrictions on such things as commercial speech and campaign speech.

Nothing in the Constitution gives anyone the right to disparage an employer and duck the consequences. In fact, nothing in the Constitution gives government the right to legislate unionism, in particular, or to interfere in employment relationships, in general.

The NLRB’s ruling is another dreary reminder of the many unconstitutional excesses of the New Deal.

UPDATE: A reader objects to my opening comment on the NLRB decision: “Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members.” He says:

Left-wing doctrines maybe, but to imply the current Board members are a bunch of left-wingers is an absurdity. Anybody who even casually follows Board decisions readily admits that the Board has moved sharply toward management-side on the whole in recent years. If you feel the statute is left-wing, then your gripe is with Congress, not the Board–unless you can point to an example of the Board interpreting the statute in a left-biased way, which I expect you can’t.

My reply:

Regardless of the Board’s current ideological composition, it’s clear that the Board acted in a Left-biased way in the case at hand. I need look no further. The Board chose to interpret the employer’s actions as an act of interference with an attempt to unionize. I would have interpreted the employer’s actions as a justifiable course of discipline against an employee who contravened the employer’s stated policies.

I have had dealings with a similar body (the EEOC), and I doubt very much that the problem is statutory. No statute can prescribe precisely how a body like the NLRB must judge the motivations of employer and employee in a particular case. The Board made a judgment call, which smacks of complaisant adherence to decades of Left-wing precedent. Perhaps the Board is too willing to accept the recommendations of its Regional Directors and their long-serving staff employees, many of whom are likely to be imbued with the “rightness” of Left-wing interpretations of the NLRA.

Anyway, the sentence to which you object . . . means this: “The NLRB remains in the grip of Left-wing doctrines (interpretations of statutory authority), even though its members may (or may not) be Leftists.” . . .

I might have written this: “Clearly, the NLRB remains in the grip of Left-wing precedents that the Board’s current membership is too gutless to reverse.” But I’ll leave it as it stands.

UPDATE 2: My correspondent rightly notes that the National Labor Relations Act (Wagner Act), which established the NLRB, “could have been an overwhelmingly destructive statute.” Although it has been destructive enough, I agree that things could have been worse had the anti-business (and therefore anti-growth) intentions of its framers been executed down the line. But in spite of the intentions of the Act’s framers, its words (in my opinion) give the NLRB leeway for pro-employer decisions. It’s a shame that the NLRB didn’t take advantage of that leeway in the case highlighted by McGuire Woods.

Liberty or Self-Indulgence?

Anarcho-capitalists would attain liberty by doing away with the state. They believe in

the Contractual Society; “[…] a society based purely on voluntary action, entirely unhampered by violence or threats of violence.”^[12] Because this system relies on voluntary agreements (contracts) between individuals as the only legal framework, it is difficult to predict precisely what the particulars of this society would look like. Those particulars are disputed both among anarcho-capitalists and between them and their critics.

Among the important particulars not accounted for by anarcho-capitalists is the method of resolving disputes between those who agree to settle their differences without resorting to violence and those persons (foreign as well as domestic) who simply refuse to be bound by such agreements. Anarcho-capitalists, in their blindness to that bit of reality, insist on applying the non-aggression principle to inter-state relations, thus effectively granting immunity to lawless states simply because they have not yet attacked us.

Anarcho-capitalists, in effect, have created a fantasy world in which the American state is unnecessary because anarcho-capitalists do not like what it sometimes does. Anarcho-capitalists believe that, somehow or other, the absence of the state will culminate in the advent of nirvana.

The state — or something worse — is inevitable, however. The real question, therefore, is how to channel the power of the American state toward the defense of liberty. The Constitution of the United States, in its original meaning, offers the best practical answer to that question. Anarcho-capitalists will object that the original Constitution was imperfect (e.g., it condoned slavery) and that its desirable provisions (e.g., the Bill of Rights) have been implemented imperfectly. Such arguments assume that perfection would have overtaken us in a stateless world.

Anarcho-capitalism, in sum, is a belief in the impossible. It is the wrong standard by which to judge the possible. The right standard, simply stated, is this: When faced with politically feasible policy options, support the ones that advance liberty rather than those which detract from it.

Incremental but real steps toward liberty are infinitely superior to the self-indulgent but politically irrelevant fantasies of anarcho-capitalism.

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