Sunday, February 19, 2006

War, the Constitution, and the UN II: Return of the Cosmopolitans

by Joe Miller

Several weeks ago, in my first post on this subject, I argued that the supremacy clause of the U.S. Constitution together with the U.N. Charter's status as a fully-ratified treaty act as a limitation on the conditions under which Congress may legally declare war. The post drew fire from a few readers (okay, I have only a few readers, but those I do have were more vocal than usual in their objections). Brian Doss raised a number of good objections here. Tom Anger offered a few more here and here. While I could hardly reproduce the entire exchange (read the posts; they are worth the time), I did want to address at least a few of the very good issues that Brian and Tom raise. So without further ado, here's my very tardy response.

Here's Brian:
In long, the point again: since the Constitution is the ultimate source of authority in the US government, and as it trumps both law and treaty when there is conflict; and as the Constitution may not be amended by treaty but by manner prescribed by the Constitution; and as it would require an amendment to the Constitution to substantively modify Congress’ warmaking authority; the UN treaty therefore is not a legal constraint upon the US Congress’ warmaking authority, and Congressional AsUMF or declarations of war are necessary and sufficient for a US war’s legality.
And Tom, in a second post on the subject:
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . .

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."
In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.
Tom goes on to cite several other court cases that support his interpretation, signing off by proclaiming the case closed. Tom and Brian may well turn out to be right, but I respectfully submit that the case is hardly closed just yet. Though Tom mentions a number of cases, he neglects to mention that the case law isn't really all that conclusive, since a number of cases have been decided in exactly the opposite direction. In Milliken v Stone (1927), the Supreme Court was asked to consider whether treaty obligations required allowing a British shipping company could continue to ship liquor into the United States during prohibition (the case was dismissed for standing). More directly, in Missouri v. Holland (1920), the Court ruled that a set of regulations that had previously been found unconstitutional was permissible when reenacted in almost identical form pursuant to a treaty with Great Britain. Indeed, the possibility that treaties might override the Constitution is real enough that in 1952, Congress attempted to enact the Bricker amendment. Money quote:
Section 1. A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 17 of Peter Suber's The Paradox of Self-Amendment has a detailed discussion of treaties and the constitution. The book is now out of print, but it's available online here.

The proper interpretation of the Supremacy Clause, then, is at least still an open question. Citing case law is unhelpful as the case law cuts both ways. Really, though, I'm not so terribly sure that the legal question matters since there is a more fundamental difficulty with the line that Brian and Tom are pushing. Here's Tom again:
In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress's constitutional authority to declare war. . . . In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers' intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States -- and certainly not in the hands of foreign powers.
And Brian:
I do not believe it is within the power of the US government to cede sovereignty, as the sovereign power is merely delegated to the US government and resident in fact within the people of the United States. Cession of sovereignty would require, as I have mentioned above, a referendum or process at least on par with the original Constitutional Convention, and not simply on a 2/3rds vote of the Senate. Treaties in this sense are like laws, which do not surrender sovereignty but are in fact instantiations of it.
To this point, I quite agree. It is not at all within the power of the U.S. government to cede sovereignty, mainly because I'm not entirely convinced that nations really count as sovereign in any morally defensible sense. The argument here is pretty complicated; I talk about at least a little bit of that argument in my post on political legitimacy and just war theory. The short version is that all of the various possible justifications for a morally legitimate government either fail philosophically or, to the extent that they are morally defensible, fail to apply to any actual state. To talk about states as sovereign, then, is to talk in terms of legal rather than moral or political definitions. Sovereignty is a legal construct; as such, it can attach wherever we define it as attaching. Sovereignty might belong to the citizens of a state, but it doesn't have to. This whole point, though, is really an aside, and I suspect that Brian doesn't really disagree with my claim that states are not morally illegitimate. Philosophical anarchism is one of the few things I have in common with most of the catallarchs.

More significantly, though, my response to Tom's and Brian's objections--and this is a response that really, I think, applies pretty much throughout their posts, is that his objection contains an unargued assumption: namely, that ceding the right to wage non-defensive wars is tantamount to giving up political sovereignty. It's not at all obvious to me that that claim is true, though. Admittedly, I opened this door by suggesting that perhaps my argument came close to ceding sovereignty. I think, in retrospect, that I want to retract that concession. I know that's sort of bad form, but that's the nice thing about working out one's arguments in the blogosphere before putting them in print in a journal somewhere. So I'll just throw myself at the mercy of the court.

To make sense of this point, we would have to first ask what exactly sovereignty entails. That's a tricky question, and it's one that I'm still trying to work my way through. Indeed, it's a question that is increasingly central to my work in just war theory. Roughly, I would say that my sympathies lie (surprise) with the Mill/Walzer legalist model. Relying on what he calls the domestic analogy, Walzer applies Mill's harm principle to nations; a nation, in other words, is entitled to do as it wishes provided that it does not harm other nations. That principle, I think, pretty much sums the legalist understanding of political sovereignty. States are entitled to do whatever they wish within their own borders. Any state that attempts to impose its will on another state by force commits the crime of aggression.

Anyone who takes the harm principle seriously (or at any non-pacifist who takes the harm principle seriously) holds that force, up to and including lethal force, is permissible in defending oneself from serious violations of the harm principle. Holding to the domestic analogy, we would get a similar right for states; a state will be justified in defending itself against aggression. Just as taking the harm principle seriously entails that I must be permitted to use force to defend myself against egregious violations of the principle, so too would sovereignty (or the international version of the harm principle) entail a right for the state to defend itself from an aggressive state. But nothing in the harm principle entitles me to act aggressively; by extension, then, nothing about sovereignty entitles a state to act aggressively.

I submit, therefore, that it is a strange position to hold that a nation that signs away its right to wage aggressive wars has ipso facto signed away its sovereignty. Sovereignty, after all, never did include the right to wage aggressive wars. Unless we are to give up entirely on just war theory and surrender the entire game to the realists, sovereignty simply can't have the right to wage an aggressive war as one of its essential features.

This response ties in to the legal question as well. Perhaps it really is the case that the Constitution does grant to Congress the right to wage non-defensive wars. Perhaps doing so was the Framer's intent as well. In that case, I say so much the worse for the Framer's intent. These are, after all, the same Framer's who intended that slavery be legal in states that desired it, that women be excluded from the franchise, and that slaves be counted as 3/5 of a person. Such intentions are flatly immoral (or in the interest of avoiding begging the question, carrying such intentions into practice is flatly immoral). To the extent that the Framers enshrined these practices into the Constitution, they assumed powers that no one can legitimately have.

So, too, is the power to wage non-defensive wars. No nation may legitimately possess such a power. Accordingly, that power cannot be an essential part of any meaningful definition of sovereignty. To complain of the U.N. Charter as illegitimately stripping sovereignty from the state is equivalent to complaining that, by passing laws against murder, the state illegitimately strips me of my liberty. Whatever we might think of the state, the fact is that I cannot complain about the state on these grounds. Having never actually had the liberty to murder, the state cannot possibly have illegitimately usurped that power from me.

23 Comments:

Blogger Andreas Broscheid said...

Just a quick response to the cases you cite: They don't support your argument. As to Milliken, the court made the decision on procedural grounds and did not decide the constitutional (or supra-constitutional) status of treaties. In Holland, the Court did not rule that the treaty overruled constitutional provisions. In that case, Missouri challenged a treaty on the protection of migratory birds, arguing that Congress had no power under Article I, Section 8 of the Constitution to enact the law. (The 10th Amendment prohibits Congress from imposing laws on the states that are not part of the powers explicitly or implicitly granted to Congress.) The Court, however, ruled that the treaty power of Article VI of the Constitution was a power explicitly granted to Congress and therefore not restricted by the 10th Amendment. In other words, the question was which constitutional provision gave Congress the power to protect migratory birds; in the end, Congress's action was covered by the treaty-making power. The treaty did not override any constitutional provisions, therefore did not amend the Constitution.

10:09 AM  
Blogger Joe Miller said...

Andreas,

I'll defer here to your expertise. You're right about Milliken being decided on procedural grounds. I suppose that I might point out that the Brits were in fact allowed to continue shipping liquor in accord with the treaty and in violation of the Constitution. Still, that doesn't show whether the act was legal, only that it happened and that the Court, given an opportunity to stop it, punted. Still, you are correct to point out that punting is not equivalent to a positive decision.

As for Missouri I've a general question. Would it be fair to say that the argument offered is still effectively an amendment of the Constitution since it grants to Congress the ability to get around the 10th Amendment whenever it wishes? On the Missouri reading, wouldn't Congress be entitled to legislate on whatever it wants just as long as it ratifies a treaty ahead of time? Why isn't that effectively a treaty overriding the Constitution? I guess that's three questions.

10:14 AM  
Blogger Andreas Broscheid said...

Holland does not allow Congress to get around the 10th Amendment. The 10th Amendment states that "[t]he powers not delegated to the United States by the Constitution ... are reserved to the States." Since the treaty-making power is delegated to the US, the 10th Amendment permits its use. If this is a loophole to the enumerated powers of Article I, Section 8, it is a loophole that is part of the Constitution.

Also, I think you are confused about what "amends" the Constitution: The treaty cannot amend the Constitution as treaty law is below constitutional law. To overturn the treaty, a federal statute is all that it takes; a constitutional amendment is not needed. On the other hand, the view that the treaty-making power constitutes a delegated power in the sense of the 10th Amendment could be viewed as a constitutional change (though not formally an amendment) in the sense that the text of the 10th A does not make a list of delegated powers. But this is a change made by the Supreme Court in the process of constitutional interpretation. It's not the treaty that produces this change but the Court's power to "say what the law is" (Marbury v. Madison).

12:00 PM  
Anonymous Brian Doss said...

As I'm at work, I'll have to wait to come up with a substantive response again, but some quick points-

I think what we have here is a case of the is-ought break; Whether or not the US can declare war (of aggressive or otherwise non-UN security council approved nature) is moot, as that power is clearly defined in the Constitution and has no text saying "only for defensive purposes" or "only if it comports with Just War prescriptions".

Now, whether or not the US *ought* to do so is another question indeed, and I think you're fairly correct about sovereignty not giving one a right to aggress against another (thats a fairly fundamental libertarian insight if not classical liberal, scaled from the individual who is morally sovereign to the state, which is operationally sovereign), though your concern about Realism shows that the is-ought chasm still exists without causative bridge- we ought not do it, but we can. Will we?

The other point is, of course, that one person's defensive war is another person's pre-emptive war is another person's aggressive war. I see the Iraq War (part III) as being a mix between defensive and pre-emptive (with a mix of liberatory intervention, but that's neither here nor there), the Europeans and the US left see it as an aggressive and unjust war. Where it lies in the final mix is up to debate, but the question of sovereignty DOES matter fairly crucially to this point; if one MUST get a consensus view from some peer group that your proposed action is 'defensive' before taking action then yes, you have ceded sovereignty, because now you no longer have control over the disposition of forces within your territory. If my actions depend on the whims of foreign potentates I am not sovereign. And given the brazen mendacity and bad faith displayed by the European opposition to the Iraq war (Chirac and Schroeder, bought and paid for by Saddam and Putin, respectively) tells me that, at least for now, international consensus is completely unacceptable as a measuring stick for whether or not US actions are just or legal.

3:17 PM  
Anonymous Mitch Ullman said...

Perhaps I missed something. How is it that the leaders of two wealthy Western nations are bought off by substantially poorer countries of the Near/Mid East?

This isn't so much an argument as me just saying that perhaps the anti-Iraqi-invasion sentiment of the Europeans is coming from some other source. If the answer is something along the lines of "oil," then perhaps there is something else I'm missing here, such as that being, by far, the most likely reason for the US to be in Iraq attempting to convince the other Mid-East oil producing nations to play ball.

I'm rambling now. I really shouldn't be reading this while I'm trying to pin down another paper that keeps sneaking off when I look away.

3:28 PM  
Anonymous Brian Doss said...

Mitch-

How is it that they're bought off by substantially poorer nations? Well, it could be that the two individuals in question are venal and corrupt and stoked anti-americanism for personal profit at the long-term detriment of their own countries' interest. But thats the cranky libertarian in me talking.

The less cranky view is similar though. It is clear that both men were paid substantial sums by Saddam and Putin (and the other Euro companies benefitting from technically illegal deals (UN sanctions are binding in theory, yo)), all of whom wanted to benefit from the essentially slave labor economy in Iraq extracting oil and servicing loans from old weapons purchases (and, fate willing, buying more in teh future once the sanctions regime was down).

The Euro public's reasoning is different and irrelevant. Europe's leaders do not give two whits why their people want what they want, only that they continue to vote for their parties. Hence the bad faith campaigning by Schroeder (making his re-election bid all about Iraq and Amerika envy/hate, even though under any conceivable scenario German forces would not have been in Iraq regardless) and bad faith negotiation by Chirac (who incompetently let it slip that he had no intention of ever saying yes, giving Blair the cover he needed to OK circumventing a 2nd SecCouncil vote).

Not only did their opportunistic, venal, and bad faith opposition to the Iraq war fail miserably, it also burned pretty much all of Continental Europe's influence over the post-game scenario, leaving Bush free reign to ignore substantive and good faith criticism after the fact as being more "blah blah blah" from the corrupt liars of the EU. The fact that Chirac and Schroeder contented themselves to chuckling at the misfortune of US and UK troops and efforts in Iraq is to their shame and discredit as well. If the EU actually believed the bollocks it spouts and spouted about the Iraq war and caring about the people there, they would not be so thrice-damned stingy and muley about working to correct the situation. A "you broke it, you fix it" mentality may be justified in some sense, but it certainly isn't humanitarian, liberal, or laudable.

5:38 PM  
Blogger Joe Miller said...

Andreas,

Point taken. Thanks for the clarification.

One question, though, regarding this:

Also, I think you are confused about what "amends" the Constitution: The treaty cannot amend the Constitution as treaty law is below constitutional law.

Strictly speaking, doesn't this beg the question? After all, the entire issue is whether treaties can amend the Constitution (i.e., whether treaty law really is below con law). So surely that fact can't be the reason for thinking that I'm confused.

I guess that it seems to me that if the legal question really were as settled as you and Brian and Tom make it out to be, there would have been no reason for 61 Senators to have voted for the Bricker amendment in 1952. Instead, when Truman attempted to use the U.N. as an end run around a Congress that refused to authorize his civil rights legislation, Congress would simply have waited for the Supreme Court to strike the whole enterprise down.

9:19 PM  
Anonymous Brian Doss said...

I dunno, I don't think you *have* to wait for the Supremes to do your work for you. As presented here (havent read anything on it otherwise) it would seem as though they were taking pre-emptive action to settle the matter just in case the supremes got goofy.

9:26 PM  
Blogger Joe Miller said...

Brian,

The other point is, of course, that one person's defensive war is another person's pre-emptive war is another person's aggressive war.

Isn't this sort of akin to saying that one person's terrorist is another person's freedom fighter? Sorry, couldn't resist. I suppose, more seriously, that I do at bottom reject this sort of relativism. Or rather, I would say that it's precisely because there is this sort of disagreement and because the stakes are pretty high in deciding to wage war, there might be good reason to think that a nation ought to have to reach some sort of international consensus before it can wage more questionable wars.

I'm sympathetic to the notion that some versions of preemption (as well as some instances of intervention) are just and thus ought to be permissible. David Luban nicely takes up this question in an article that (coincidentally) we are reading for class this week. You can find it here if you are interested.

Luban presents a consequentialist argument for the current legalist framework. He posits that the previous framework, one in which nations determine entirely on their own when aggressive wars are justified, led to a century in which perhaps as many as 175 million people were killed in wars.

The disasters of the 20th C give us a reason for thinking that it might be a good idea to restrict the rights of nations to determine for themselves when acts of prevention are justified. That is, because a right of prevention is so easily abused and because abuse results in so much widespread misery, it may be better to draw pretty narrow limits around the rights of nations to unilaterally determine when they may act from prevention.

That said, I think that you do raise an excellent point here, and it's one that I need to address in far more detail than I have to date.

9:36 PM  
Blogger Rick said...

Although this is not related to the larger issue of sovereignty or just war theory, a comment was made that I want to address. Granted the 3/5 compromise was wrong, but there is nothing in the wording of the Constitution that prevented women from voting. The word Person or People is used throughout until, suprisingly, the 14th Amenndment (civil rights amendment). As a matter of fact Wisconsin allowed women to vote on some matters (education related) as early as 1885.

10:00 PM  
Blogger Andreas Broscheid said...

Rick: you're right. The fact that the Constitution does not grant a right does not mean that it prohibits the granting of that right by another body, such as a state government. By the time the 19th Amendment was ratified, 12 states permitted women to vote. (Sorry for being so didactic today; I've spent too much time prepping classes.)

12:09 AM  
Blogger Andreas Broscheid said...

Joe,

re. "Strictly speaking, doesn't this beg the question?"

You're right, in my comments I should have stuck to Holland. In that case, the Court constructed the treaty in a way that it did not conflict with the Constitution. It did not answer the question whether treaties could override the Constitution, and the Bricker Amendment indicates that some people feared the Supremes would eventually put the UN above the Constitution. (Which doesn't mean that Congress doesn't do lots of redundant things, as long as constituents pay attention.)

Of course, in 1957 (Reid v. Covert) the Supreme Court clearly stated that treaties have to comply with the Constitution. But as Brian wrote, the text of the Constitution does not provide much guidance (to put it mildly) regarding the permissible causes of war (unlike, say, the German constitution). But doesn't that mean that treaties can restrict the permissible causes of war without contradicting the Constitution?

1:05 AM  
Blogger Thomas said...

Hi Joe et al., I just became aware of Joe's post and the various comments, replies, and rejoinders. It will take me a while to digest it all and see if there's anything left for me to add. Perhaps a day or two. Cheers, Tom

3:49 PM  
Blogger Thomas said...

Brian and Andreas have covered the ground pretty well. I just want to add a thought or two about "relativism."

Joe, in one comment you say "I submit, therefore, that it is a strange position to hold that a nation that signs away its right to wage aggressive wars has ipso facto signed away its sovereignty."

Brian responds to that, and you respond to Brian. You begin by quoting Brian: "The other point is, of course, that one person's defensive war is another person's pre-emptive war is another person's aggressive war." You respond, "Isn't this sort of akin to saying that one person's terrorist is another person's freedom fighter? Sorry, couldn't resist. I suppose, more seriously, that I do at bottom reject this sort of relativism. Or rather, I would say that it's precisely because there is this sort of disagreement and because the stakes are pretty high in deciding to wage war, there might be good reason to think that a nation ought to have to reach some sort of international consensus before it can wage more questionable wars."

I am wedded to the quaint notion that America is something special. Among other things (of which there are many, not the least of them being the Constitution), America happens to be where I live. My life, liberty, and property (and those of my fellow citizens) are inextricably bound up in the successful defense of America, its rule of law, and its legitimate economic interests (some of which are abroad). I will not be dissuaded from defending America's right to self-defense (which may include preemptive warmaking) by the notion that America is somehow no better than any other nation. I believe that America is better than most other nations (if not all), and demonstrably better than the nations (and extra-national organizations) that America has fought and is fighting. I believe the Framers saw it that way, too, in that a principal reason for scrapping the Articles of Confederation in favor of the Constitution was to "provide for the common defence" of the United States.

You go on to say that "The disasters of the 20th C give us a reason for thinking that it might be a good idea to restrict the rights of nations to determine for themselves when acts of prevention are justified." My response: When war is outlawed only outlaws will make war -- as the history of the 20th century amply demonstrates.

3:12 PM  
Anonymous Mitch Ullman said...

Thomas, I'd like to understand something that may change my understanding of your post.

Is there a thing that could be called morality? Is it universal? If so, does it pretty much come down to Hobbes's idea that I need to kill you before you kill me, unless there are rules that deny that ability?

I just want to understand better the thought process used to justify aggression.

5:30 PM  
Blogger Thomas said...

Mitch,

First, self-defense isn't aggression. Joe and I agree about that (I think). Where we disagree is what to call self-defense and what to call aggression. I hope you will credit me with being a proponent of self-defense, not aggression.

Second, the notion that "I need to kill you before you kill me" is valid only if one has good information that "you" is going to kill (or try to kill) "me." A generalized fear along the lines that "everyone is out to get me" isn't a justification for self-defense, it's simply a rationalization for aggression. (See Hitler, Stalin, and similar types.)

Third, to your questions about morality: "Is there a thing that could be called morality? Is it universal?" Yes, there is such a thing that could be called morality. It is a code of behavior that allows one to differentiate between those things that are allowable (right) and those things that are not allowable (wrong). Is such a code universal? I believe that prudence and experience cause most people to accept something along the lines of the Golden Rule, which must of course be applied to a wide variety of specific circumstances. I do not believe that there is such a thing as a transcendant morality that somehow exists apart from human beings and is simply waiting to be discovered by philosophers and theologians. (If you have the time, you should read my long essay on "The Origin and Essence of Rights," which is here: http://libertycornerii.blogspot.com/2005/01/practical-libertarianism-f_110608596578260072.html)

Does that help you understand my position?

Tom

7:36 PM  
Blogger Thomas said...

P.S. The link I cite in my previous comment is:

http://libertycornerii.blogspot.com/
2005/01/practical-libertarianism-
f_110608596578260072.html

You'll have to reassemble it on one line in order to paste it into your browser.

7:39 PM  
Blogger Joe Miller said...

Tom,

First, thanks as always for your comments and for helping to spark and maintain a great discussion. We should have lots of material for class tomorrow night as we take up the question of preemption. Now on to some more specific comments.

Tom: I am wedded to the quaint notion that America is something special. Among other things (of which there are many, not the least of them being the Constitution), America happens to be where I live. My life, liberty, and property (and those of my fellow citizens) are inextricably bound up in the successful defense of America, its rule of law, and its legitimate economic interests (some of which are abroad).

I know that we've discussed this before privately, but I must confess that I'm still not quite sure what to make of this sort of claim. Or rather, I know what to make of the claim, but I'm not entirely sure how to go about squaring this sort of position with just war doctrine.

What you describe sounds suspiciously like a version of the nationalist egoism that people like Morganthau and Osgood espouse. There the position is that I ought to care about my country more than I care about any other country. They offer some (I think pretty bad) arguments for that sort of thinking, arguments that are gounded in some (equally bad, I think) sociological observations about human behavior in groups.

Your defense of nationalist egoism (or maybe Americentrism) has the virtue of appealing to some real and significant features of the U.S., features that do arguably set the country above many others. (I still worry that the features that you cite here apply equally well to a whole lot of liberal democracies, but that's another issue for another day really.)

The trouble I see is that a position that holds that my nation matters more than yours and thus that what is just for my nation to do might not be just for your nation to do, then we have left the realm of impartial morality and settled instead on a pretty radical subjectivism. Just War accounts, though, seem to require the sort of impartiality that you want to reject.

That leaves us with a sort of high-minded realism, one that says that whatever is in the interest of my nation just is the right thing to do regardless of how it affects others. That's not a view that I'm comfortable with, mainly because I can't see any morally relevant features of the United States specifically that would set it apart morally from all the rest of the world. Some appeal to legitimacy as a moral grounds might justify having one set of rules for liberal democracies and another for everyone else, but I can't see any non-arbitrary reasons for setting the U.S. specifically on a pedistal.

I think, though I would hardly claim to speak for Mitch, that this is the sort of worry that he had in mind in raising the question about universal morality.

8:17 PM  
Blogger Joe Miller said...

Oh, and for the record, yes Tom and I do agree that aggression and self-defense are two entirely different things. And we even agree for the most part about what sorts of things count as aggression. Our disagreements are at the margins, over where to draw the lines in the blurry middle ground between cases of obvious self-defense and obvious aggression.

8:20 PM  
Anonymous Mitch Ullman said...

Joe, you hit the nail on the head with that hammer that I know I put around here somewhere... oh, that's right, it's with the antacids.

Tom, I'm going to bookmark that essay and I promise to give it a read. However, given the load I've decided to heft upon myself... for the sake of those that have to put up with me, I'm going to read it later. I will say, though, that my chief concern is actually the fine edge upon which aggression and self-defense rests. From what I've read thus-far, the aggressive stance of 20th C's "most famous" despots tends to be what I'm seeing in today's ideology. Perhaps I'm just gun-shy to the idea that some yahoo is going to somehow get control of all three branches of gov't and go on a shooting spree. I'm sure that will never happen though. ;)

9:28 PM  
Blogger Rick said...

Mitch,
That "yahoo" would be the American people, who, as a nation, voted those people into power (plus appointees, a Constitutional right). Although, I'm just as worried about neo-socialists taking over, so I see your point.

1:01 AM  
Blogger Thomas said...

Joe,

I think you've summarized quite well our points of agreement and disagreement. You touch on what I think is a key point (perhaps the central point) of our disagreement when you say this:

"The trouble I see is that a position that holds that my nation matters more than yours and thus that what is just for my nation to do might not be just for your nation to do, then we have left the realm of impartial morality and settled instead on a pretty radical subjectivism."

Is there such a thing as "impartial morality"? I think not. As I said in my previous comment, "I believe that prudence and experience cause most people to accept something along the lines of the Golden Rule, which must of course be applied to a wide variety of specific circumstances. I do not believe that there is such a thing as a transcendant morality that somehow exists apart from human beings and is simply waiting to be discovered by philosophers and theologians."

I therefore believe that, when it comes to war, each of us has to ask and answer these questions:

(1) Does my nation evince ideals that are worth defending? Not everyone will always say "yes" to that.

(2) Even if my nation does not evince such ideals, will I be better off or worse off if my nation is defended, given that my nation's enemies may not discriminate among "patriots" and "dissenters"? An evaluation of the specific threat -- imminent or potential -- comes into play here.

(3) If the answer to (2) is "better off," then how, specifically, should my nation defend itself? Here one must consider such things as the likely effects of a particular mode of defense (or preemptive self-defense) on (a) the (economic) cost and likelihood of success; (b) "world opinion," in the sense that it might actually influence the nation's future, for good or ill (I ignore reflexive anti-Americanism, for example); and (c) the ideals that the nation actually upholds.

What should I read that might convince me that there is an "impartial morality" to which I might defer, instead of asking such questions?

Tom

11:49 AM  
Blogger Rick said...

I have to say I am on Tom's side here concerning impartial morality. To the Middle East, nothing America (or the West in general) does is moral. And we consider many of the things in Africa to be immoral.
Obviously, many of the Middle Eastern nations would approve of preemptively "wiping Israel off the map"; it is not some impartial morality that stops them, but fear of reprisal.

12:48 PM  

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