Citizenship, political legitimacy, and substantive due process

The Cato Institute, along with the Pacific Legal Foundation, has submitted an amicus brief in McDonald v. Chicago the U.S. Supreme Court case that will determine whether the 2nd Amendment applies to state and local governments.

The brief is an interesting read. The authors (including Timothy Sandefur, one of my favorite libertarians) have explained the issues in a way even a non-lawyer like myself could easily follow. Along with Sandefur's multi-part series on the Slaughter-house Cases, it should be required reading for all American libertarians.

If McDonald overturns Slaughter-house, it could be one of the most pro-individual liberty SCOTUS decisions in a long time (even if you include Heller and Lawrence!)

One of the issues Sandefur, Levy, Hopper, and Shapiro grapple with in their brief is the relationship, if any, between different components of the first section of the 14th Amendment. These sections include: A. The citizenship clause; B. The privileges or immunities clause; and C. The due process clause.

A.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

As the brief makes clear, and as people on this very blog have pointed out to me, the citizenship clause does more than establish the citizenship of former slaves. Rather, it establishes a new kind of federal citizenship. One might even argue that it merely reiterates and formally recognizes federal citizenship, rather than creating it ex nihilo.

Thus, the citizenship clause made all persons "born or naturalized in the United States" citizens of both the U.S. and of, e.g. Kansas, Illinois, or whatever. This dual citizenship gives the federal government certain responsibilities toward U.S. citizens, regardless of what state they happen to reside in.

This is something to keep in mind when considering pseudo-libertarians like Ron Paul, who wish to abolish the citizenship clause: do we really want citizenship -- both state and federal -- to be entirely a creature of legislative fiat, to be revoked on the basis of majority will?

Certainly, I can see why Stormfront and the other white supremacists who supported Paul might be fans of the idea!

In any event, the brief establishes that its understanding of the citizenship clause is well-supported historically, and in accord with the intentions of the framers of the 14th Amendment. I won't replicate that analysis here.

B.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

If there is such a thing as federal citizenship, what does it amount to? What does it require of both state and federal governments? The privileges or immunities clause is supposed to tell us. Sadly, on its own, it doesn't tell us very much.

The framers of the 14th Amendment could have spelled out what's on the list, but they didn't. The brief quotes Charles Sumner (my new hero), and others, to justify an expansive reading of the clause that goes beyond the narrow interpretation it was given in the Slaughter-House Cases.

However, I have a separate, complimentary point to make: why didn't the framers of the 14th Amendment spell out the list of privileges/immunities it supposedly protects? Why did they leave the clause vague and abstract?

With regard to the 14th Amendment, I believe we are in the same position we are in when it comes to the 8th's prohibition of "cruel and unusual punishment." The authors of the Bill of Rights could have given us a list of cruel punishments -- thumbscrews, I suppose -- or even explicitly dated the understanding of cruelty underlying the amendment, e.g. "punishments now considered cruel and unusual shall not be used."

They didn't do these things. Instead, as Ronald Dworkin has claimed, the authors of the Bill of Rights set down general principles, which may have implications Framers themselves might not have forseen.

If this analysis is applied to the privileges or immunities clause, and it is interpreted as a principle, rather than an eternally fixed, itemized list, the connection between the citizenship clause and the privileges or immunities clause becomes clear: taken together, they reiterates a principle of political legitimacy, one which was explicitly recognized in the Declaration of Independence.

This principle of legitimacy specifies what all governments must do, as a matter of moral law, in order to maintain the allegiance of their citizens. To maintain their moral legitimacy, the federal government must ensure that the rights of its citizens are not violated, whether by other citizens or by other (i.e. state) governments.

A less expansive interpretation of the privileges or immunities clause seems impossible to me: if the federal government failed to response when a foreign government violated the rights of its citizens, especially on American soil, it would be derilect in its duties, and this would undermine its legitimacy. Why does it matter if the rights-violating government is not, say, Iran, but Kansas? To maintain its legitimacy, the federal government must respond.

Thus, given that the citizenship clause did establish a federal form of citizenship, there is an obvious answer as to what the privileges or immunities of U.S. citizens are: they're the same rights and entitlements the federal government must observe, as a matter of both moral and constitutional law.

Indeed, I am not sure how one can avoid this somewhat moralized reading of the privileges or immunities clause (or, for that matter, the due process clause).

C.

"...nor shall any state deprive any person of life, liberty, or property, without due process of law..."

I've always thought that the idea of substantive due process, by which the courts have applied parts of the Bill of Rights to the states, has done at least some of the job the privileges or immunities clause was supposed to do. The brief argues, fairly persuasively, that while there is some overlap, substantive due process is and was a less radical doctrine, with deeper roots in English common law.

My moralized reading of both clauses bears this out, actually. While one might deny the legitimacy of (for example) the English monarchy, it is virtually impossible to deny that a functioning legal system existed in England, and that laws were being made. Thus, the presence of a legal system and the presence of a legitimate political authority can, I think, come apart: you can at least have the former without the latter.

However, unless you're a very shallow kind of legal positivist, you will believe that there is at least a connection between morality and law, such that not everything that gets enacted necessarily counts as a law. Deeply unjust laws, we might say, echoing Augustine, are not really laws at all.

At the same time, an absence of deeply unjust laws in a particular legal system may not be enough to establish the legitimacy of a particular government or state. The bar for political legitimacy is, arguably, quite a bit higher, and I believe the Declaration bears out this line of thought.

Thus, substantive due process recognizes that there are moral limits on what can even count as a valid law. And no one -- even non-citizens -- ought to be deprived of their liberty in the absence of a valid law. In contrast, political legitimacy requires more of governments; more than that, the requirements target the government's treatment of citizens, not persons more generally.

In fact, the wording in the 14th Amendment bears this out: while the due process clause mentions "persons", the privileges or immunities clause mentions "citizens."

I believe this is an additional reason, aside from textual and historical evidence, to think of the two clauses as overlapping, and even related, but not identical (for example, it is probably true that a state which repeatedly denies its citizens of liberty without due process of law also loses its legitimacy.)

All things considered, I deeply enjoyed this brief. The above is simply a non-legal scholar's attempt to get at a conceptual distinction between the two clauses of the 14th Amendment, one which can be grounded in fairly intuitive moral considerations.

All government is basically the same

"Not only does magisterial power exist because of evil, but it exists by evil. Violence is employed to maintain it, and all violence involves criminality. Soldiers, policemen, and jailers; swords, batons, and fetters are instruments for inflicting pain; and all inflection of pain is in the abstract wrong. The state employs evil weapons to subjugate evil and is alike contaminated by the objects with which it deals and the means by which it works. Morality cannot recognize it, for morality, being simply a statement of the perfect law, can give no countenance to anything growing out of, and living by, breaches of that law. Wherefore, legislative authority can never be ethical - must always be conventional merely."

Herbert Spencer, "The Right to Ignore the State", taken from Social Statistics, Chapter XIX

Wow, I love that Spencer quotation. Politics is violence, all the way down. It has no special authority. It is nothing more than a clenched fist, always directed at someone. Over time, only the targets of that fist have changed, but never the nature of the threat itself.

"Do this, or perish." That is politics, seen clearly. Politicians compete to see which of their favored groups will benefit from the violent apparatus of the state. When a politician defeats another in an election, this just indicates that a new portion of society will be sacrificed for the benefit of others.

And nothing more. Nothing more. There is no mythology that can disguise the terror of law, the smacking of the fist on flesh, the blood and slaughter promised to those who resist further.

As I've argued in the past, modernity has managed to economize the violence, so that more can be done with less. But this process has nothing to do with morality; rather, violence is expensive, and outright violence threatens to expose government for the gang of brigands that it is.

The frown of the police officer. The hint of a tax audit. People fall into line. They are terrorized into submission. They have seen what happens to those who resist, if only dimly, in dreams. Or they have been convinced that those who disobey the law are bad men.

I do not encourage people to obey the law. I have no argument, certainly none based in morality, that concludes "And that is why you should obey the law." But, for their continued health, I cannot encourage people to disobey it. That in itself reveals the truth of politics: obey or perish.

On the other hand, I laud Marc Emery for selling illegal seeds to Americans. I laud the tax cheats for depriving their masters of income. I laud the man who hordes ammunition. Who refuses to register his guns. I laud the Canadian who still speaks freely, who ignores Jennifer Lynch and her squad of censors. I laud the pornographers who skirt obscenity laws. The smokers who ignore the signs.

The Iranian students who fight, even now, against a tyranny that is at bottom only more blatant in its need to use violence to gain obedience than ours.

I praise contempt for the law. I praise the small number of people who refuse the census takers, who skip jury duty, who don't bother to vote. Who smoke pot on the steps of city hall.

And I laugh at the people who are satisfied with the revealed truth of democracy. The people who would die of malnutrition if the mob got to vote on something as simple as what they should eat each day. The people who take politics seriously, as if voting were a sacrament and Joe Biden a priest.

Finally, I give credit to the lobbyists and bureaucrats, who have figured out how to make a living without doing anything productive themselves. Who work the levers of the machinery to their own benefit, squeezing blood from their competitors and the innocent with equal fervor.

May you all hang someday.

Sarah Palin is an idiot

You know, I predicted that Palin would be McCain's VP pick on my radio show, before anyone else was talking about her.

At the time, I was even a little excited about the pick. She seemed different, interesting, a game-changer.

Then she opened her mouth.

She reads all newspapers and magazines! She doesn't know enough to even bluff about the Bush Doctrine. The only Supreme Court case she could name was Roe v. Wade (at least Bush Jr. mentioned Dred Scott once or twice.) I probably know about foreign policy than she does. Her resignation speech was a rambling mess.

Most of the people commenting on Peggy Noonan's excellent column about Palin only point out Joe Biden also says stupid things. Fair enough. You don't need to convince me that there's a double standard out there that works against conservatives and people on the right more generally.

Sure, the media was mean to her. It's almost always mean to conservatives, or anyone perceived to be on the "right." You deal with that by being smarter than everyone else. By having the truth on your side. By never, ever making a mistake.

When I was on my internship in Washington, D.C., I published an op-ed in the Washington Times. Not very prestigious, but I was pleased. In preparation for submission, I gave it to one of the women I worked for so she could edit it. As a wannabe academic, popular writing is still difficult for me.

The woman (we'll call her L) liked the op-ed. But she also asked: did you triple check everything in this piece? Are all your ducks in a row? Check again!

After extensive experience in Washington, L gave me some advice: conservatives (and libertarians, by implication) have to be better. If a liberal makes a mistake, other liberals are likely to make excuses for him or her. If a conservative makes a mistake, it will be given the worst possible interpretation. Errors of fact get turned into outright lies. Poor phrasing becomes evidence of malign intent. And so on.

The solution is not to whine about the media or the left-wing establishment, as Palin has done. The solution is not to make mistakes in the first place. Make your arguments, make them clear, with accurate premises and impeccable logic, and you reduce the risk of misinterpretation.

I kind of wish someone had given Palin that advice.

But, personally, I don't think Palin's only problem is the media. I think she's genuinely stupid, and too stupid to even know how to feign intelligence when the situation calls for it. Too stupid to know how ignorant she is. Too stupid see the benefit of cracking a textbook.

I've met the type before. People like Palin are usually between 17-22 years old. When they arrive at college, they think they know everything, or at least more than they need to know. When it comes to studying, they avoid it, and rely on charm to placate their instructors and their parents. This rarely works over the long run.

I have no idea how Palin made it this far without growing up, like Peter Pan in a pair of stiletto heels. The Republicans need to ditch her and find an adult to lead their party out of Nevernever land.

Liberalism and Violence

Lately -- probably since the release of the torture memos -- I've become fascinated with the relationship between violence and liberalism.

Politics is violence. No question. There is violence in liberalism, but it is kept within certain boundaries. Beyond those boundaries, the law cannot cross. Liberal regimes use violence in respectful ways - at the limit, on the basis of reasons all citizens would accept, if such reasons were presented to them.

In this way, liberalism is taken to be not just superior, but uniquely superior to any other form of politics. Every other form of politics involves subordination: the king commands and his inferiors obey. The king need not offer any reasons to his subjects; they obey merely because he tells them to obey. The king does not respect his subjects and nor do they respect him. They fear him, and so they obey. Perhaps, in some sense, the king even fears them, which keeps his edicts within certain bounds.

Liberalism is different. In the ideal form of liberal politics, citizens interact with each other respectfully, as moral equals. Within the political sphere, no one tells another what to do without providing reasons both will accept. The subordination of one will to another is replaced with the rule of public reason. Fear of the Other is replaced with respect for the wisdom of the consensus.

(By the way, I think a good case can be made that Rawls' later work - exemplifying this vision - is much closer to Rousseau than to Kant.)

This is the liberal ideal. And it is a noble thing. But it is a manqué. I don't just mean that it is unobtainable - although this is certainly true. I mean that it is not and cannot be what it claims to be. Liberalism is not a fake (maybe); it's a never-was, wrapped in a set of plausible concerns that lend the ideal itself an air of credibility.

To explain, let us return to violence. Where is the violence in the liberal ideal? It is no where and everywhere at once.

The king exudes violence. In the very interesting cover of the first edition of Hobbes' Leviathan, the sovereign carries a sword in one hand - his right - and the scepter in the other. In Leviathan, all are subordinate to the sovereign - which is what the term means after all - but they are in fact subordinate to the sword.

For Hobbes, who carries the sword is less important than that there is someone who is carrying it.

The sovereign's awesome power to inflict violence makes not only society possible, but justice itself. "Justice therefore, that is to say, keeping of covenant, is a rule of reason, by which we are forbidden to do any thing destructive to our life; and consequently a law of nature," he writes, before going on to say that,"covenants, without the sword, are but words and of no strength to secure a man at all."

In other words, justice, absent the sword, is a manqué. Violence -- overwhelming, incredible violence -- is what makes justice real, instead of a never-was.

As I understand it, the liberal ideal promises to take us beyond the Hobbesian vision. Justice, to the liberal, is formed by the strictures of public reason. It is unjust to coerce someone on the basis of reasons he could not accept. What makes justice possible for the liberal -- here I take Rawls as the exemplar -- is not violence, but our capacity to respect others even when we completely disagree with them about matters of morality.

And this is why the liberal ideal is also a manqué. Out of respect for others, we try to meet them on common ground, making our case for the use of violence on the basis of reasons they themselves will accept. But if we are successful, then violence is unnecessary: they will be convinced, and comply without the sword! If we are unsuccessful, then - compatible with the ideal - we will not use violence against them.

Thus, while the Hobbesian vision starts and ends with violence, the liberal ideal never allows violence to enter the picture.

So while liberalism starts out life as a theory about the proper and respectful use of violence, the ideal cannot sustain itself: there can be no respectful use of violence, and hence nothing like a liberal politics. Liberal politics is a never-was. A manqué.

So why haven't liberals followed this line of reasoning to its conclusion and become libertarians? Good question!

Here is how forming policies around a manqué, a never-was, pays off. To return to the king, there is never any question about his ability or right to inflict violence. Hobbes didn't invent the idea of the sovereign; he only gave him secular clothing (and what clothing: take a look at the cover illustration again if you haven't seen it before.)

The relationship between the sovereign and his subjects is impeccably honest. He will kill them if they disobey. They obey.

But imagine a weakening sovereign, one whose sword is rusting and falling apart. Hobbes was very clear about what a sovereign should think of himself once he finds himself in this position: look out! If you're too old to swing the sword, you shouldn't be sovereign in the first place.

This decaying sovereign, terrified of being displaced, comes up with a new scheme: liberalism. "Citizens," he declares, "why must there be so much violence in our relationship? Why can't we relate to each other as equals?"

The citizens-cum-subjects respond: "Give us a break. We can't respect you while we're subordinates. Put down the sword and we'll talk."

However, the sovereign is too clever for such a ploy. Instead of putting the sword away, he addresses the citizens thusly: "If I give up the sword, there will be chaos. But I'll make you a deal. Bring me the people you hate the most. The ones you despise. The blacks. The queers. The foreigners. Bring them to me and I will slay them before you, every year without exception. If I do this, will you let me keep the sword?"

And so it was agreed. And there was even a great deal of new found respect between the sovereign and (most of) his citizen-subjects. They did share common ground after all! The sovereign got to keep the sword, and he pointed it mostly at those in the hated groups, the minorities who could not rally a coalition of other indifferent or hostile citizens to defend them against the sovereign's violence.

They called it liberal democracy -- and it was good.

If anyone protested the "special" treatment he got at the hands of the king and his mob, he was denounced as unreasonable: "Surely, you can't reject the wisdom of the consensus," it was said. "After all, things are much better than they used to be when the king would just inflict violence on whoever he liked."

There was much tut-tutting about how the new system was uniquely superior to whatever had come before. Much less violence, always inflicted in the name of the king and his citizens. Violence that became laws codifying the new relationship between people and state, a relationship of equals, united in hatred and fear.

Violence made respectful, because it was the instantiation - albeit impure - of a genuine ideal. But mixed with violence, the manqué merely provides cover for the yearly slaughter. After all, no one really expected violence to leave politics. What they wanted - and what they got - was less violence, comfortable living, and their consciences cleaned in the abattoir of the "reasonable overlapping consensus."

The Problem With Property

Mike Brock put up this great post on the Shotgun and I wanted to take the opportunity to jot down a few more thoughts here.

Formally, property isn't all that difficult to understand. If X is A's property, then A has the right to exclude others from using X, where "using" is defined as broadly as possible.

"Exclusion" entails something like this: if X is A's property, then it is morally permissible for A to use violence to stop B from using X. While violence isn't normally permissible, the fact that X is A's property gives him the right to inflict violence on those who encroach on X.

Again, this is all very formal. The details of property -- not to mention property law -- go beyond my pay grade. However, there are probably only two ways to think about property and property rights, if one's moral view accepts them at all.

What should we think about property as "the right to exclude, using deadly force if necessary"?

Here's the first view: property rights are an extension of personal rights. Each of us comes equipped with a moral force field around our bodies. If another person enters this field without our permission, we are permitted to use violence to protect ourselves. The moral force field around our bodies is what prohibits others from (say) harvesting our organs without our consent.

On this view, there are certain actions we can take with respect to the stuff in the world that extends the force field around that stuff. Enveloped, our stuff gains the same level of moral protection as our own bodies; which means, basically, we can use violence to protect it, make use of it as we like, and so on.

Because the force field around our bodies is seamless, holding unconditionally, our property rights are absolute. There is only one field and it imposes the same moral requirements whether one is talking about body or land.

How we extend the force field is something of a "black box." I don't think the Lockean labor mixing story can be made coherent. The mere exertion of calories, as when one moves a stone across a field, seems insufficient to wrap both the stone and the field within the moral force field. "Purposeful labor" might work better - but maybe not.

In any event, I wish to leave the black box unexamined in order to turn to another way of thinking about property rights.

On this story, there is a gap between self-ownership and stuff-ownership. Think of it this way: the moral force field around the body can still be extended to cover stuff, but it loses a little bit of its punch once it is extended in this way. While it gives a person the right to exclude others from her body 100% of the time, perhaps it only gives her the right to exclude others from her stuff 99% of the time.

In short, the force field is weakened once it leaves its natural starting point in the body. Perhaps the more it is extended, the weaker it gets. At the limit, perhaps it dissipates entirely. Perhaps no one's force field is powerful enough to encompass an entire planet, or an ocean.

I think a good intuitive case can be made for a gap between self-ownership and stuff-ownership. Here is a case I presented in the comments at the Western Standard to try to demonstrate the idea (I cleaned it up a bit):

You buy all the land around Sally's house, which - to take the metaphor - means now there is a moral force field around her house. But let's make it a literal bubble: You put up walls of plastic stretching into the sky, all around Sally's house.

Given the right to exclude, Sally is obligated not to try to break through those walls. It would be morally wrong for her to cross over your land in an attempt to get food or water.

But of course you haven't coerced Sally, haven't done anything unjust to her from a libertarian point of view. At the same time, your actions have effectively crippled her autonomy.

So the question: suppose we accept that there is no divide between self-ownership and stuff-ownership. It's one force field and it applies to both you and to the stuff you've labored on (or something like that.) This means that when Sally cuts through the plastic, she's done violence to you. This means -- I'm assuming -- that you would be fully justified in shooting her in the head as she tries to make her escape. After all, she just tried to break into your property with a blow torch!

Intuitively, was it permissible to shoot her?

Now assume that there is a divide between self-ownership and stuff-ownership, one that works out in this way: self-ownership is absolute. No one can use your kidneys without your consent. But stuff-ownership is not absolute. Every once in a while, when it's necessary to give someone any shot at all of living an autonomous life, the stuff force field can be bent, manipulated a little.

In this case, if you refuse to ease your force field to accomplish some moral goal or protect certain values, Sally does nothing wrong when she ignores the field, and you are not justified in shooting her. Rather, you've committed murder, because you used violence in a way that, under the circumstances, was not permissible.

Of course, "bent and manipulated a little" is extremely vague. One might think that I'm just waxing utilitarian about property rights. But I don't think that's quite it. I don't support taking Jones' property and handing it to Smith just because Smith would enjoy it better. That's what a utilitarian might support.

My thought is different: we adjust your property rights for the sake of Sally's liberty, but we adjust them as little as possible. I never said you had to let her live on your land: you just have to let her escape, without shooting her as she crosses your property.

So what does that mean? It means, I think, that property rights should be subordinated to liberty - or autonomy, if you prefer. But some property rights are necessary if one is to have the space to develop and grow into an autonomous individual.

My quibble is not with property as such so much as it is with the first vision of property I presented, one that takes the form of an unconditional right to exclude. We don't need to think of property in that way, and most people don't. Libertarians who cleave too tightly to property in that sense are doing themselves and the movement a disservice.

Torture and the Coalition of the Living

The Volokh Conspiracy - truly one of the most interesting and informative blogs in the 'sphere -- published the results of a recent poll.

• 77 percent of voters say they have "followed news reports about the release of government memos about the Bush administration’s interrogation of terrorism suspects" either "Very closely" or "somewhat closely."

• 42 percent of voters believe America tortured terrorist detainees; 37 percent disagree.

• 58 percent of voters oppose further investigation of the Bush Administration's treatment of terrorist detainees.

• 58 percent of voters believe the recent release of memos describing interrogation techniques "endangers the national security of the United States."

I also found this question particularly interesting.

Some people say that there is a natural tension between protecting individual rights and national security. In the United States today, does our legal system worry too much about protecting individual rights, too much about protecting national security, or is the balance about right?

37% Legal system worries too much about protecting individual rights

21% Legal system worries too much about protecting national security

33% Balance is about right

This is interesting stuff, and it confirms some of the attitudes I've seen in Americans, both students and otherwise. I'd be curious as to what the results would be if that last question were asked of Canadians. The comment thread at Volokh is, as usual, good reading.

Now, what can we say? Lately, I've been considering the following kind of argument: democratic citizenship has a certain logic to it that will almost always eventuate in the torture of foreigners. The only question is whether the torture will be done in the shadows or whether it will be done under the obscuring aegis of the legal bureaucracy.

This is not to say that non-democratic states will never torture, nor even that they'll never torture foreigners. It is to say simply that democratic citizenship, as such, makes torture rational as a response to perceived threats to the political community. A monarch tortures for pleasure, or because he is simply insane. A democracy tortures for the most pedastrian, economic reasons. That is what I mean when I say the logic of democratic citizenship implies the torture of foreigners.

My argument for this position is not complicated. In brief, to gain power in a democracy, one needs to build a coalition around a set of common interests. Shorn of its romantic trappings, the candidate in a democracy makes his coalition a deal: support me, and you'll get X, Y, and Z. The candidate who can build the biggest coalition will probably win.

Now, one of the largest coalitions a politician can call on is the coalition of people who do not wish to die in terrorist attacks. Call this the coalition of the living. As a practical matter, this coalition includes virtually everyone. But it doesn't include non-citizens, for the very simple reason that they can't vote. Given the choice, a politician in a democracy will choose to kill foreigners before he risks losing the support of this very large coalition.

You might ask: don't politicians sometimes kill their own citizens too? Of course. And they will do this as long as it can be done economically: that is, as long as they can retain effective control over a large enough coalition to maintain their power. Thus, despised minorities can be sacrified, beecause the rest of the coalition truly doesn't care about their welfare, nor does it see their sacrifice as a risk to its own interests.

But I think that there is such a thing as democratic citizenship. Citizens are motivated to care about other citizens, at least to some degree. So there is always some disadvantage to sacrificing citizens. To a much, much lesser extent, this is also true of foreigners. For example, some Americans care about some Canadians. Some Americans know that their own interests are entertwined -- to some extent -- with the interests of those in other nations. But these ties are, relatively speaking, weak. Given the right amount of stress, they can break, and -- under the right circumstances -- the coalition can demand that they be broken, for its own safety.

Note that I am not making a moral judgment of the politician who chooses to sacrifice foreigners for the safety of those in his coalition. If you accept democracy, you should think that this is what politicians ought to do. The president of the United States is morally obligated to serve American citizens -- not foreigners. This logic, endemic to the notion of democratic citizenship, is what makes torture rational in a democracy.

The monarch, to return to the example, may torture for fun, or because he is insane. But he is certainly not morally obligated to torture, for the simple reason that he has fewer, weaker obligations to his subjects. On the other hand, the monarch can uphold transcendent moral principles, and declare, without winking, that he will not torture foreigners.

In a democracy, only Barack Obama's impressive charisma allows him to say such a thing, and even then, I think most of us are well aware of the wink (the poll results seem to indicate that.) Torture is how democratic politicians live up to the legitimate expectations of their citizens.

Citizenship makes you a member of a club, in some cases a very elite one. It places you under the protection of the state. For all that libertarians criticize the state and its disingenious representatives, they should also admit that, at least in some cases, for citizens of the right skin color, the state takes its obligations very seriously. It will protect its citizens, even if this involves shackling, drowning, and flaying foreigners.

Don't get me wrong: the absolute monarch may also recognize such obligations. But their basis is not the same. In a democracy, the state owes citizens because (in some sense) the citizens give up some of their autonomy. The obligation is based on reciprocity, not in divine edict. And, in our age, this makes the ruler of a democracy take that obligation even more seriously than he might otherwise. In the United States, a nation founded on the morality of exchange and consent, we should not be surprised to find that the torturers take their obligations very seriously indeed.

Thus, the logic of democratic citizenship makes the torture of foreigners a rational response to perceived threats. If you doubt this, consider the following thought experiment I stole shamelessly from the comment thread at the Volokh Conspiracy:

Imagine a terrorist attack takes place sometime in the not-to-distant future. A bioweapon attack. Tens of thousands of American citizens die. For whatever reason -- and, really, they don't need a reason -- many citizens come to believe that the government could have prevented the attack, if only it had not taken the torture of foreigners off the table as an interrogation option.

What is their response? They would believe, I think, that the government had not upheld its end of the social contract. The state would have failed to follow through on the implicit deal it makes to each and every citizen: give up your autonomy, and I'll protect you. Feeling this way, there is hardly any reason at all for the citizens not to reassert that autonomy, in whatever way they deem necessary, up to and including the termination of all the politicians who failed to do their jobs.

I make no moral judgments about the outcome of this scenario, but I trust we all can see that it is one politicians would like to avoid.

Torture, then, is never really off the table. And no one really believes it is. But it makes some feel better to think that it won't be used. For the basest of economic reasons, it can be kept to the shadows, where it is likely to be used even more efficiently, without threatening the consciences of those in the coalition of the living.

Torture and the "Morality" of Efficiency

Modernity (or post-modernity, if you prefer) is afflicted with two kinds of moral disease. Here they are:

1. An unreflective moral subjectivism, which denies the very existence of moral reasons.
2. An all-encompassing instrumentalism about reasons: the only reason to perform (or not perform) some action is because doing/not doing so will bring about certain states-of-affairs.

Combined, these two diseases cause symptoms much worse than either would cause on its own. By denying the existence of moral reasons -- that is, reasons that apply unconditionally, regardless of interests and desires -- modernity has the task of explaining all of morality in terms of those same desires, interests, and preferences. And by wholeheartedly embracing instrumentalism, morality is reduced to nothing more than a preference-satisfying mechanism.

When (1) and (2) are combined, the result is a morality that affirms that the only states-of-affairs that matter are states in which preferences are satisfied. Morality is merely a means to efficient preference satisfaction.

Except, the problem is, doing the right thing is often rather inconsistent with satisfying peoples' preferences.

Consider, again, torture.

According to the New York Times, President Obama's own intelligence director has claimed that

the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists...“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.

Torture can work? That is -- to put it in terms moderns will easily understand -- torture can sometimes help to satisfy the preferences of the majority of Americans who would like to not die in a terrorist attack? Uh oh!

(And remember, in a democracy, the preferences of citizens count for more than the preferences of non-citizens. At least according to democrats.)

Heh, apparently, the Obama administration deleted Blair's assessment of the effectiveness of torture from the version of his memo released last Thursday. And no wonder! Doing so allowed a legion of morally afflicted left-wingers to control the media with the message that torture never, ever works. Which is why we shouldn't use it.

And if it did work, oh leftist intellectuals? Then what?

What else did Obama delete? This line:

“I like to think I would not have approved those methods in the past,” he wrote, “but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given.”

Egads, the good admiral is sympathizing with the torturers! We can't let that one out!

To be fair, Admiral Blair clarified these statements recently:

“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

Hm, well good! All things considered, in this instance, torture was ineffective at satisfying the preferences of Americans. Torture was less efficient than other means the CIA could have used to acquire the same information.

Melissa McEwan, the feminist enfant terrible behind Shakesville seems to think this clarification should put the whole "torture question" to rest.

Implicit in [Blair's] statement is the admission that we turned to torture before exhausting every other conceivable strategy for extracting information from detainees, and, if I had to guess, we likely tried nothing else before going straight to torture. Our policy appears to have been based on every interrogator treating every detainee as if there's a bomb about to go off in the middle of Times Square.

Maybe. Obviously, treating every detainee as if he had the disarm code to a nuke hidden in Times Square is an inefficient use of resources. McEwan may be too afflicted with the modern moral malaise, though. If treating every detainee this way is inefficient, how about treating only some of them that way? Or only one?

Someone tell me: what's the appropriate balance? Too much torture, done too openly, hurts the world's image of America, and that's bad (because it detracts from the preferences of Americans.) So scale back on the torture. Brush it under the rug. Have it done in the shadows -- and for God's sake, stop writing memos about it!

But notice what McEwan doesn't say: that it's always intrinsically wrong to torture. Quoting Matt Damon (heh, what a charmer that guy is), the most she's willing to say is this:

'If a guy knows where a dirty bomb is hidden that's going to go off in a Marriott, put me in a room with him and I'll find out. But don't codify that. Just let me break the law'."

That's right. Don't bring the torture into the open. Do it, when the circumstances require it (which means: when it will be an efficient use of resources), but DEAR LORD DON'T LET THE GOVERNMENT TELL ME ABOUT IT.

What a cowardly response. If it's wrong, it's wrong. Legalizing it might make it more likely that torture will be used, or more likely that it will be used inefficiently (although Alan Derschowitz disagrees, and he's smarter than McEwan and at least as liberal.) But, to the modern, that's just something else to be thrown into the preference-satisfaction calculus. It's not wrong to make torture legal because torture is morally wrong. To the afflicted modern, it's only wrong to make torture legal because it might mean that torture will be used inefficiently, and that the preferences of Americans will not be as satisfied as well as they could be.

Monstrous. Morality matters. But it can only matter if we expel the two cancerous tumors eating away at its foundations, this rampant subjectivism and instrumentalism. The future of liberalism depends on this.