Friday, September 30, 2011

Extrajudicial killing

The dilemma arises from the ambiguity of the term "extrajudicial killing." Such killings are quite common (and often quite justified) in the United States in the form of "officer involved shootings." The crucial distinction is whether the killling is retributive (i.e. as a consequence for past actions) or pre-emptive (necessary to prevent future harm). It is easy to sympathize with Mr. Williams's unease with retributive extrajudicial killing, while also puzzling why he apparently does not recognize the legitimacy of pre-emptive killing.

Pre-emptive killing (just like pre-emptive war) is understandably disquieting; it seems a fundamental principle that punishment never be applied prospectively, either for things that people might do but can't or can do but won't. Simple fairness requires a rebuttable presumption that a person will not commit an act that would justify pre-emptive violence. The reality of life is however that such presumption is overcome by circumstances. Had a Jefferson County deputy been a better shot and dispatched Eric Harris in the midst of the Columbine rampage, the act would have been justified as preventing future shooting victims, but not as retribution for those already dead. The subtlety however is that the prior killings created circumstances by which to conclude that Harris poses a future threat, and therefore cold be killed on the spot.

A policeman who confronts a recidivist felon, who then points a gun at the officer is preumably justified in using lethal force to defend himself. It is understood that the fatal shot that the policeman fires is pre-emptive, i.e. to prevent something that circumstances indicate that the felon is at a high risk of doing, but which he has not done yet; kill or injure the policeman. this killing is "extrajudicial" in the sense that there has been no prior judicial determination that the felon poses a threat to the policeman, such a determination lies totally in assessment of the immediate circumstances. If the object of "extrajudical" violence does not pose a prospective threat, then the means of justification disappear. If, for example Osama bin Laden was bed-bound, non-communicative and paralyzed after a stroke, partitioning his cranium with a nine millimeter bullet, while perhaps emotionally satisfying, would make for an uncomfortable precedent in a civilized democracy.

The issue then, is not whehter the authority to kill someone is judicial or political, or whether the target is an American citizen or not, or in this contry or another. The question is whether a person's prior conduct and present circumstances present a sufficient threat of future harm to justify killing to prevent that harm. Necessity requires that we vest police officers with some discretion to make such a determination in emergencies, and our system of government vests certain officials with making analogous determinations with respect to people such as bin Laden and al Awlaki. As always such discretiion may be abused, and we then rely on other institutions to remedy such abuses.

Mr. Williamson is justified in wondering whether the death of al Awlaki is a justified pre-emptive killing, or an extrajudicial retributive killing, or perhaps suspicious that it is the latter masquerading as the former. He may legitimately doubt that al Awlaki posed a sufficient threat of future terror to justify elininating him without due process. He is right to be uncomfortable at the prospects for abuse, but he shold not use this discomfort to deny that occasionally pre-emptive killing is justified by the protection of innocent life.

Sunday, August 14, 2011


I think it is beginning to dawn on a lot of people that Obama was elected on curb appeal, not on what is under the hood.

Monday, June 27, 2011

Separation of Powers

The key issue in separation of powers analysis is that of burden. The reason that a republican form of government with democratic institutions has an executive is not because it is virtuous, but because it is practical. It is not possible to have a representative body of "citizen legislators," or even the de facto professional representatives we now endure, set National Park admission fees, order toilet paper for military bases or review research applications at the National Institutes of Health. The executive is there to execute.

The concept of the Constitution explicitly gives Congress such powers as raising taxes and declaring war. The principle underlying such a design is that free people must assume burdens willingly, and the best approximation in a representative form of government is to have those burdens ratified by the representative branch of government.

The president should not impose financial burdens to enable ideological aims or force Americans to bear the strains and sacrifices of battle without the consent of the governed, formalized through Congressional approval. If the executive circumvents this principle, as he has done not only with the military, but regulatory over-reach, and fiscal irresponsibility, it is the role of the representative branch to deny him the resources to do so. That is the remedy. Unfortunately, that takes courage, and we seem to underestimate the importance of courage when we elect our representatives and Senators.

Tuesday, June 07, 2011

General Welfare

The ultimate question regarding the "necessary and proper" clause is not whether it empowers the Congress to regulate this or that, or prohibit one action and require another. Such questions inevitably devolve into academic parsing of words, attempts to divine context from Benjamin Franklin's personal habits, and a litany of examples attempting to prove the disputed points by deduction. In fact, the courts of this country have considered virtually innumerable cases regarding Consitutional interpretation, each involving contesting parties with more or less valid arguments. The observation that the rules of such cases are occasionally overturned and superceded are evidence that there may not be a right answer; the Supreme Court after all delivers its judgments as opinions.

True conservative are correct to defend principled interpretations of the Constitution; however, as the country approaches the event horizon of a fiscal black hole, the focus shifts appropriately from theory to practice. The practical issue is not whether Congress may enact laws codifying altruism (although this is certainly a valid inquiry), the real issue is whether the Constitution enables Congress to do things like regulate the speed of light or eliminate asthma through appropriate legislation. It really doesn't matter if the Constitution allows Congress to legislate away at a problem if the problem is not solvable by legislation.

The framers of the Constitution were much smarter than the mass of legislators that followed them. They realized that there were certain habits and principles that separated those societies that would prosper, and those that would devolve into tyrannical failures. The founders knew that programs that depended on the coercive power of the state would ultimately fail. Unfortunately, part of the appeal of government solutions to problems is that the government can use force to compel compliance, and has what is regarded as an unlimited credit line. These create the mistaken illusion that the government can solve everyone's problems without creating more if its own.

The founders realistic view of how societies progress is not found in "evolving" interpretations of the general welfare clause that authorize the domestic use of force in pursuit of fashionable and photogenic causes. The pragmatism of those serious men is found in Article 1 section 8(8) which allows Congress to "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Imagine for a moment the effect if this instead allowed Congress to "compel authors and inventors to develop the useful arts to promote the general welfare," or to "appropriate for public purposes those writings and inventions which shall be found useful." How much promotion of science and the useful arts would have happened? The founders wisely resisted the compulsion to compel; their descendants sadly have not.

The patent clause also contains something of the general welfare spirit that liberals claim is lacking in libertarians and conservatives: it limits the duration of patent and copyright protection, thus implying that, after the inventors and writers have appropriately benefitted from their efforts, the general public should be allowed to expand on them and put them to useful purposes.

Medicare may have been a reasonable idea when it was still an abstration in the minds of sentimental, if short-sighted people. It may in fact have some role in an advanced society, but the more it is larded up with regulations, rules, penalties, mandates, and other devices irritating to the ideals of a free society, the more it is destined to fail, and cause a lot of misery in the process.

Wednesday, June 01, 2011


Current economic news suggests that the federal government's three year effort to stimulate the economy has not had the desired effect. Government borrowing and spendng in particular have not seemed to have had the desired effects. Economists, policy analysts, academics and captains of industry may engage in nuanced debates as to why this is so, discoursing on whether the economy is consumer driven or production driven, whether expenditures on public benefits are "investments" or not, or whether there are more arcane requirements for government policy to lead to economic growth. The ultimate answers may indeed be arcane, but the pertinent explanations are just as likely to be within the observation of the average person.

Several readily verifiable observations will serve as bases from which to proceed. First, we note that when the stock market dropped by 500 points, commentators remarked that "500 billion dallars has gone out of the economy." If it went, where did it go? Similarly, economic distress has resulted from collapse of the tech bubble and the housing bubble and some identifiable condition should accompany the start of such events.

Second, the Second World War is acknowledged to have had some role in ending the Great Depression, despite the fact that the monies expended on munitions and military operations should not provide an economic benefit by themselves. If they did North Korea would be one of the Asian Tigers. Something else must be at work.

Third, consumer goods, such as VCRs rapidly lose their value when something else comes along. The value of a VCR is not intrinsic to the particular unit, but varies with the perception of what it is worth, and its desirablilty compared to other alternatives.

What these three observations suggest is that value, as teh etymology of the word suggests, is an opinion. When stocks drop in price it is because there has been a change in teh opinon of what they are worth. When billions are expended on military hardware during peacetime, this creates a drag on economic growth; the resources could probably be put to better uses. However when a society is engaged in an existential struggle against powerful enemies, thank, airplanes, ships, soldiers and military bases are highly desirable, i.e. they are valued and their production creates value in the economy. When a technology comes along to replace video cassette recorders, the opinion of what VCRs are worth changes. When the opinion of housing prices turns unfavorable, the value of it drops, and wealth stored there decllines, not as a matter of monetary balance but quite literally as a matter of opinion.

In order for spending to stimulate the economy, the spending must be on things that people value at the time. It must be on things that people actually want, not things that politicians or activists want them to want.

So what sort of things do people value? If one examines the econoic history of the United States, he will observe that economic prosperity accompanied the emergence and growth of several discrete technologies. Th efirst was steam powwer, that among other things enabled the development of railroads and steamships. Then came the telegraph, and later the telephone. This was followed by the development of aviation, the widespread availablity of the automobile, radio communications, then television. Then came the personal computer, the internet and ubiquitous cell phones. These were the things that people valued that led to paroxysms of prosperity. If one looks closely at each of these technologies, a common characteristic emerges: they are all methods that enhance the ability of people to interact with each other. This should not come as a surprise: the affluence of the Roman empire derived not from plunder but from trade.

It would be expected that the advent of social networking would be the next phase in this economic process, but it becomes apparent that technologies that enhance human interaction is necessary but not sufficient for prosperity. Economic growth, like all sophisticated human activity requires people to make assessments about their goals and how best to use resources to achieve them; simply, it requires some measure of predictability. The recent expenditures on "stimulus" were futile because they were expenditures on things that people did not necessarily value, and they were made in an environment permeated by uncertainty. The uncertainty arose primarily for the capriciousness of regulatory authorities insinuating themselves into the transactions that previously only required willing parties.

The prescription for effective stimulus spending is rather straightforward: spend money on things that people actually value and stay out of their way when they do business with each other.

Thursday, May 05, 2011

When Is It Okay to Assassinate Someone?

In order to address this question, we need to select the few ingredients for our analysis, and limit these to only those necessary to the task. These are: Justice, justification and objective rigor.

The first, justice, needs to be strictly defined here, since in common usage it has an amorphous, malleable meaning more appropriate to emotional musing than to dispassionate reason. For the purpose at hand, justice means that quality that determines the appropriateness of consequences for specific actions or choices. Thus, justice has been served if the consequences that a person experiences are appropriate to whatever caused those consequences.

Justification means allowing an act that is presumed to be impermissible, because the circumstances negate that presumption. Homicide, for example, is presumed to be impermissible, but is justified in certain situations, such as self-defense.

Objective rigor is the quality by which the circumstances are wrung free of abstractions, symbolic and metaphysical twaddle and subjective agendas. The way the justice system attempts to achieve this is through adversarial proceedings subject to strict evidentiary standards. The matter must be capable of objective determination, free if ideoplogical flourish, and not merely be a metaphorical leap such as "killing the planet," or "hate speech." An examples of a permissible inquiry is whether someone is alive or dead.
Taking these principles and applying them to assassination, we can start with the presumption that killing a person is wrong, and therefore, to be permissible, must be justified. Justification comes from showing that the killling achieves a desired end; that is, according to the concept of objective rigor, preferable to the consequences of other courses of action. The key here is how objective rigor applies to the determination of whether the circumstances justify the act. This is what distinguishes this approach from "the ends justifies the means." The means must be necessary to an objectively proper outcome. In the case of judicial killing, i.e. the death penalty, a judicial proceeding determines whether the consequences of death are appropriate to the crime in question, and whether the accused is guilty of that crime. Another inquiry is whether or not the death of the accused is necessary to achiving justice. Western societies have increasingly found this not to be the case, with resultant decline in the use of the death penalty.

Justification is not limited to a retrospective analysis of past conduct. Self defense involves killling someone to prevent a future eventuality, i.e, harm to the person threatened. In such instances objective rigor must determine that the perceived threat was sufficient to overcome the presumption that killing has avoided an objectively undesirable outcome. The fear of injury must be objectively reasonable, and the method of defense must be as well.

In the case of Osama bin Laden, the principle of objective rigor must be applied to several considerations: How certain was it that he engaged in actions or made choices that made extra-judicial killing an appropriate consequence for those actins and choices; How necessary was killing to achieving an objectively appropriate result for those actions; How necessary was killing to prevent further objectively undesirable results from hos conduct. The answers to the first two questions probably do not provide confidence that killing was justified, although it is admitted that a certain emotional satisfaction might arise from it. The concept of objective rigor however does not admit such indulgences. If we consider the hypothetical wherein bin Laden had suffered a massive stroke, and was in an irreversible coma, the compulsion of bursting into his room and creasing his skull with a nine millimeter bullet wanes. There is problably sufficient objective reason to believe that bin Laden did a number of very evil things, and in other circumstances a more formal approach to establishing his culpability might have been warranted. Saddam Hussein, after all was executed solely on the basis of his past deeds, and this after a trial.

If justification is to be had, it derives from the concept of bin Laden as a threat, as one who demonstrated evil and murderous appetites and who was a great risk to indulge them again. He might have posed an immediate threat to his pursuers by, for example, harboring a bomb or alerting guards. In this case killing him on the spot would be justified, not because he was widely suspected of having done outragoues and evil things in the past, but as reasonably necessary to prevent him from doing them in the future. There are of course other benefits that can be argued from killing him in a raid; serving as a deterrent or warning to those who would follow in his footsteps, disrupting communicatins that would necessarily pass through him, and eliminating an incentive for disciples to commit mass murder for his supposed benefit while he was still alive.

Assassination can be justified if it is reasonably necessary to eliminate a severe threat. Allowing it in order to vindicate purely emotional needs opens up an entire world of pretextual and insular grievances that by their very nature can never serve as the basis for justice.

Saturday, April 16, 2011

Expendable Government

Small government conservatives are going to be viciously demagogued until they confront the one fallacous assumption that underlies the progressive world-view: that unless government does something it won't get done. The left has insinuated this fallacy so deeply into current discourse that it is assumed that any cut to any government program will result in humanitarian disaster, complete with refugees, feral youth and the elderly being left to die on the trail. Obama, Pelosi, and fellow prgressives peddle the notion that, not only should government be responsible for things that were individual responsibilities for thousands of years, but that only government should be responsible for them. The left simply cannot risk the argument that there are some things best left to the character and industry of free people. They do not want people questioning the premise that the government is the preferred provider of both necessities and amenities, even those that it does not provide well.

Wednesday, March 16, 2011

Risk Aversion

It is interesting to contemplate why we are entertained by scary movies, or are compelled to take recreational risks, or gamble. There must be some psychological principle that causes dsome people to seek out the experience of risk. It is reasonable to contemplate that the survival of early man was dependent onn risky activities; that hunting food required encounters with dangerous animals, or journeys across perilous terrain. It is quite likely that the overly risk-averse starved or otherwise were inhibited by their timidity. Now however, risk aversion seems to be the new national creed. Administrative decisions are made foremost with regard to avoiding liability. Nanny-state government proscribe any number of activities because of the modest risk they might entail to consenting adults. Socialist-sounding policies are intended primarily to mitigate the risk of economic misfortune by homogenizing in a society that lacks self confidence or pay the price of success. It is quite possible that some of our ancestors died of the malady of risk aversion, and it is quite possible that such will be the fate of our society.