Justifying Preemptive Defense

Two years ago I asked, “How Can a Free Society Defend Itself?”  which raised several questions to which I still haven’t found satisfactory answers.  Among them:

  • How can we defend against asymmetric threats?  (You have to dig into my discussion on the Mises.org forum where I point out that “asymmetric threats” are essentially a product of modern technology: e.g., an individual can build and deploy a truck bomb that can kill hundreds of people, where before the 20th century an individual could not easily wreak havoc disproportionate to his ability to suffer justice.)
  • In an age of asymmetric threats how can we defend against aggressors who are suicidal or otherwise immune to deterrence?

Paul Robinson, professor of law, had an essay in the WSJ pointing out that international law lacks reasonable and moral provisions for states to deal with threats preemptively.  He suggests that the American “Model Penal Code” provides a better standard since it allows for the use of force when “immediately necessary.”

I don’t believe the MPC really addresses this problem, since the key point is defining when and what defense is “immediately necessary.”  For example, if somebody says, “I’m going to kill you — not now, but sometime when your guard is down,” our current laws do not allow you to use force against that person.  The best they offer is a judicial restraining order telling the aggressor to stay away from you.  In the context of states and international law we have the same problem: An aggressor can tailor his threat so that defense is only justified when it is impossible.  Then he can retreat as soon as a forceful defense can be mounted … at which point defense is not “immediately necessary” and hence would be unjustified.

Following some brief correspondence Professor Robinson offered the following clarification:

The point here is that modern [penal] codes switch the focus from the timing of the threat to the timing of the force needed to defend, as it should.  This is a popular provision in state criminal code reforms.  The timing of the threat – its imminence – simply is no longer the relevant test for triggering defensive force.

This has not yet been incorporated into any laws that I am aware of, but it’s at least a first step in principle to addressing these difficult questions.

We Already Have Government Death Panels

Among them, as I have pointed out before, is the FDA.  Matt Alsante brings our attention to the latest mass death sentence handed out by our government:

As the debate about health-care reform has heated up, there’s been a lot of talk about creating expert panels that give bureaucrats control over what treatments we can receive. Truth be told, these panels already exist. Earlier this month, the Food and Drug Administration (FDA) bureaucracy made a decision that will deny women a viable option for fighting ovarian cancer.

What About Universal Legal Care?

Since government already has its sleeves rolled up to reform the healthcare industry, Richard Rafal offers “A Doctor’s Plan for Legal Industry Reform” along the same lines.  Which only seems fair — after all, if the U.S. Constitution provides for any universal right to healthcare it has hidden that right in its “penumbras.”  But it explicitly enumerates universal rights to legal care (legal counsel, due process, speedy trials, the right to petition the government, etc.).  The judicial system is our last governmental defense against infringement of our inalienable rights, but these days it is practically inaccessible except through the legal cartel.

Rafal’s Legal Industry Reform is worth reading in full, but here are some highlights to get you started:

Each potential legal situation will be assigned a relative value, and charges limited to this amount. Program participation and acceptance of this amount is mandatory, regardless of the number of hours spent on the matter. Government schedules of flat fees for each service, analogous to medicine’s Diagnosis Related Groups (DRGs), will be issued. For example, any divorce will have a set fee of, say, $1,000, regardless of its simplicity or complexity….

Legal “death panels.” Over 75? You will not be entitled to legal care for any matter. Why waste money on those who are only going to die soon? We can decrease utilization, save money and unclog the courts simultaneously. Grandma, you’re on your own.

Ration legal care. One may need to wait months to consult an attorney. Despite a perceived legal need, physician review panels or government bureaucrats may deem advice unnecessary. Possibly one may not get representation before court dates or deadlines. But that’ s tough: What do you want for “free”?

QOTD: Business vs. Big Business

James Taranto clarifies a distinction that often trips up detractors of free-market proponents, who claim that being pro-capitalism is the same as being a shill for corporations:

A useful distinction can be drawn here between business (commercial activity) and big business (large corporations or industries acting collectively to seek economic advantages from the political system). Those of us who adhere to free-market principles are pro-business, in that we think commerce is a good thing, but owe no allegiance to corporations or industries as such.

State Interposition, Nullification, and Secession

Interposition, nullification, and secession.  These are the means by which a state can check the power of a federation.

That is how American federalism was supposed to work. The three branches of the central government would check each other, but it would be up to the sovereign States to keep the central government itself in check. The Constitution was to be enforced through political action of the States not by the legalism of nine unelected Supreme Court justices.

That’s from Donald Livingston’s excellent essay at the Tenth Amendment Center.

“Interposition” brought to mind the recent gestures by several state governors to reject federal “stimulus” funds.  Those gestures were viewed as symbolic, empty, and perhaps silly because rejecting the federal money would not have had any real effect on federal power or spending.  They would have had real consequence had the governors truly interposed against what they claimed was unconstitutional federal spending: I.e., the concomitant gesture to rejecting the federal funds should have been the recovery and return to their states’ taxpayers all federal taxes that were supposedly being spent unconstitutionally.