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.

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

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:

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.

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 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 § 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.

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.

Related posts:
I've Changed My Mind (08/15/04)
Next Stop, Legal Genocide? (09/05/04)
Here's Something All Libertarians Can Agree On (09/10/04)
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Creeping Euthanasia (09/21/04)
PETA, NARAL, and Roe v. Wade (11/17/04)
Flooding the Moral Low Ground (11/19/04)
The Beginning of the End? (11/21/04)
Peter Singer's Fallacy (11/26/04)
Taking Exception (03/01/05)
Protecting Your Civil Liberties (03/22/05)
Where Conservatism and (Sensible) Libertarianism Come Together (04/14/05)
Conservatism, Libertarianism, and Public Morality (04/25/25)
The Threat of the Anti-Theocracy (05/03/05)
The Consequences of Roe v. Wade (06/08/05)
The Old Eugenics in a New Guise (07/14/05)
The Left, Abortion, and Adolescence (07/21/05)