Thursday, September 01, 2005

More on the "general welfare"

Michael, over at Nameless Rantings (congrats on the engagement!) helpfully pointed out in earlier comments that Jack Balkin over at Balkinization has a new post in which he lays out a debate from the early days of this country as to whether the "general welfare" clause allows the federal government to provide disaster relief. If you don't care the read the whole thing, rest assured that the pro-relief forces won out.

This, I think, makes sense. The Constitution, as Justice Jackson once wrote in the context of a free-speech case, is not a "suicide pact". If citizens should expect anything from their federal government, it should be assistance in their time of most dire need. I think what is happening in New Orleans qualifies.

Of course, two different things are happening in New Orleans: people are starving and dying and other people are creating a state of violent anarchy. Thus, I'd like to point out Justice Jackson's full quote:

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

To whit, if the Constitution and Bill of Rights are not a suicide pact, than they should not prevent the government from providing relief and they should not prevent the government from fighting an orderless, liberty-less anarchy. In this case, I'm of the opinion that much harsher measures need to be taken with looters. There has been much commentary on the left side of the blogosphere about the lunacy of shoot-to-kill orders for looters. (I'll let you find the links, I'm short on time right now.) Today, I'm going to have to disagree. I think it's perfectly reasonable, albeit tragic and scary, to institute shoot-to-kill orders or something similar in cases where full-on anarchy is setting in. The question, it seems to me, is how do you differentiate between looters taking advantage of anarchy and looters trying to survive. I've got a simple answer: don't shoot anyone looting a pharmacy or grocery store. Everybody else, however, is fair game.

Harsh, reactionary and unpleasant, I know, but that's what I'd propose. I understand that shooting a looter no doubt violates his right to due process and forcefully rejects any assertion of human rights he might have made. However, the scope of process due in a state of anarchy is quite low I think, and I'm inclined to believe that human rights are not something that exist free of the fetters of civilized conduct (In other words, you don't just HAVE human rights, you earn them. HOw? I guess by acting human, whatever that means).

So, having put on my reactionary hat for the evening, I shall bid you farewell. Time to go contemplate building my arsenal and hoarding food and water for when the end-times hit DC....