Would It Be Immoral for Joe Biden to Break the Law to Save the US from Fascism?

Premise:   The Republican Party is now a fascist insurrectionist party.  It breaks the Constitution and statute laws nearly every day.  If the Democrats do not start to play by some of that playbook, the American democratic republic will cease to exist and a fascist dictatorship of the minority will take its place.

The remedy:  Biden must be willing to break some laws to prevent the fascist takeover from succeeding.

The Question:  Would it be immoral for Pres. Biden to break one or more laws to save the US from fascism?

Yes, if:

· Law and morality are identical (a view held by practically no one).

· There were a known probability that the consequences would be worse than letting the country be taken over by fascist coup.  (There is no such known probability.)

· If the law to be broken were established by a majority vote in a free and fair election.  (The problem with this is that a majority may, directly or through their representatives, enact an unjust law, e.g. laws against homosexuality.)

No, if:

· Thomas Hobbes is right that the King (President, Supreme Leader) wields absolute power over his subjects by virtue of their free act of submission.  The only possible act of his that would be immoral is unjustly killing one or more of his subjects.

· Law and morality are distinct normative domains (legal positivism). On this view, morality may allow for a law to be broken or even imply that it is a duty to do so.

· The law to be broken is consequential for the very existence of American democracy, e.g. state legislatures giving themselves power to control election results.

· Breaking the law would bring about better consequences for the people than letting the law stand unmolested (consequentialism).

A bad example

Biden suspends the electoral college before the 2024 presidential election.  He could issue an executive order to that effect, but it is unlikely that he could enforce it.  Both parties would attack him, causing too much political unrest.

A better example

President Biden could declare a state of emergency in the wake of the Dobbs ruling, declare that ruling unconstitutional or illegitimate, and authorize the FBI or other enforcement agency to arrest anyone in any state that attempted to block a woman from getting an abortion.  Such an executive order would probably be deemed illegal under some theory of states’ rights and SCOTUS absolutism, but it would not be immoral according to the "No" criteria listed above.

 

 

 

A Response to Steve McIntosh’s “A Proposed National Agreement on Abortion”

On July 10 Steve McIntosh published a position paper on the Institute for Cultural Evolution website titled “A Proposed National Agreement on Abortion.”  I’m a fan of the Institute and agree with most of Steve’s ideas.  Not this time.  SM’s proposal for a national compromise on abortion is a noble effort toward resolving a supremely divisive issue that cannot presently be resolved politically, as he himself admits.  However, his approach is seriously flawed in several ways.  Despite this, his claim that a “trimester model” can be the basis for compromise is worth looking at for sharpening our understanding of a number of concepts involved in the abortion rights debate.  Here is what SM's trimester model looks like:

Despite the odds against the project, as an integralist, I support SM’s aim of finding a solution that would be acceptable to all the major stakeholder groups in the battle over abortion rights: traditionalists, modernists, and progressives. However, I have problems with the initial premises of his proposal and with his belief that it actually produces wins that each faction could accept.  For those who don’t like lengthy posts, I have divided my response into four parts

1.  Was the Dobbs ruling legitimate?

Early in the essay, SM writes:

“While I would prefer the preservation of the rights interpreted by Roe, I agree with the court’s majority opinion that the original Roe decision itself was a “raw imposition of judicial power.”

SM’s agreement with Justice Alito’s characterization of Roe as a “raw imposition of judicial power” implies that he accepts the legitimacy of this Court and its ruling in Dobbs v. Jackson’s Women’s Health Organization.  Many, including myself, do not for several reasons.

· First, Merrick Garland should be on the Court.  That he is not is owing to the self-appointment of Mitch McConnell to the position of King of the Senate by which usurped authority he denied even a hearing to Barack Obama’s nominee, Garland, in 2016.  

· The three justices appointed by the Trump administration were confirmed by a corrupt process in the Senate.  Over the next four years, the McConnell-controlled Senate confirmed three of President Trump’s nominees, all of whom had been selected for their commitment to overturning Roe v. Wade.  That’s not how the system is supposed to work. 

· All three of those justices lied in their confirmation hearings when questioned about where they stood on Roe v. Wade.

· The reasoning behind Dobbs, written by Justice Alito, has been shredded by numerous legal authorities.  See, for example, this interview with health law expert Joanne Rosen.

· Justice Sonia Sotomayor, writing for the three liberal justices, correctly chastised the conservative majority for undermining the legitimacy of the Court with their decision in Dobbs to overturn Roe v. Wade, relegating women to the status of second-class citizens and opening the door to elimination of other basic rights.  Let us also note that this is the first time in Court history that a ruling eliminates a right instead of protecting one.  Talk about “raw imposition of judicial power.”

2.  Some logical problems

“As the Dobbs ruling explicitly acknowledges, by placing the issue of abortion beyond the democratic process, Roe has been a contributing cause of America’s bitter culture war for nearly 50 years.”

That’s true, but it’s rather like saying that Brown v. Board of Education has been a contributing cause of the white backlash against it.  The other contributing cause of America’s “bitter culture war,” of course, is the 50 year campaign by the Christian right to overturn Roe v. Wade.

“Any proposed compromise, of course, must answer these questions: Why would the   pro--life side agree to a compromise when they have just won a major legal victory? Because 61% of Americans believe in the right to an abortion.” 

This is odd reasoning.  If the pro-life side had any regard for public opinion on this issue, they would not have worked tirelessly for decades to thwart the majority by eliminating Roe.  Moreover, it is clear from the right wing’s activities since Dobbs (activating trigger laws, seeking restrictions on women’s travel rights, pushing for a federal ban on abortion, etc.), that they are not interested in a compromise of any kind. Most of the anti-choice states won’t even allow exceptions for rape or incest.  To attribute democratic principles to the anti-abortion crowd is wishful thinking.  So why would the “pro-life” side agree to a compromise after winning a major victory?  They won’t.

“Conversely, why would the pro-choice side be willing to compromise on this cornerstone of women’s rights?” 

Pro-choice advocates will point out that Roe v. Wade was the compromise.  It affirmed a woman’s right to an abortion along with the establishment of a viability criterion that protected fetal rights after six months.  That restriction did not please pro-choice advocates who favored no restrictions at all or critics who disagreed with the timeline.  But, with the passing of time, it came to be accepted by a majority of the population.  Perhaps SM’s argument is that a better compromise is available, one that represents a win-win-win for all concerned.  We will see if that is the case.

3.  Protections of fetal rights

“The ethically evident right of a viable 3rd trimester fetus “to be born” is not protected by federal law. In the 6 states (plus Washington D.C.) which have no gestational limit on abortion, the life of such a sentient fetus can be legally terminated at any time before it is physically separated from its mother at birth….The rights of a viable 3rd trimester fetus are, however, well established in secular ethics.

The reference to an “ethically evident right….” is problematic.  One reason “the right of a viable 3rd trimester fetus to be born is not protected by federal law” might be that it is not “ethically evident.”  Indeed, there is no philosophical consensus on the question, because whether the fetal baby is a person and therefore entitled to rights is hotly debated in the literature.  McIntosh would rather not deal with the ‘personhood’ issue, but it seems impossible to avoid it.  Until the issue is settled, there will be a considerable number of modernists and progressives who will reasonably disagree with SM’s “compromise” solution.  The Wikipedia page he cites in support of his claim that “The rights of a viable 3rd trimester fetus are, however, well established in secular ethics” contains no mention of a  philosophical consensus on the issue.  Quite the opposite, in fact.  There is even debate among secular ethicists about whether even newborn infants have a right to life. 

4.  Protections of States’ Rights

“As mentioned in the introduction to this paper, when it comes to the issue of abortion rights, the tension between majority and minority interests exists at multiple levels. At the highest collective level, this majority-minority tension is seen in the fact that a clear majority of Americans favor the abortion rights provided by Roe. Yet in a minority of states, most voters continue to oppose abortion rights.  At the next level down, within these pro-life states, the numerous women who will now be denied the right to an abortion represent a valid minority interest which the overturning of Roe extinguishes. And at the individual level, based on the “right to be born” argument set out above, a viable fetus has a similar yet countervailing “valid minority interest” with respect to the mother’s ‘majority rights’ to life and health.^”

In this section SM’s proposal to include the (mostly southern) anti-abortion states in the category of minorities whose interests need to be “balanced” with those of women and fetuses is shockingly misguided.  “States rights” was the clarion call of slaveholding states who battled mightily—eventually in a civil war—to have their “right” to own slaves protected in the Constitution.  The 13th and 14th Amendments to the Constitution established that the question of slavery in the US is not a matter for decision by majority vote.  Personal freedom from enslavement for all Americans is a fundamental, not a negotiable right subject to balancing against other interests.  I assume that, if today a majority of a state’s citizens favored reinstatement of slavery as a right, SM would be opposed to any attempt to change the Constitution in the direction of some kind of slavery/freedom balance.

This way of framing the debate is mistaken.  Abortion rights is not a majority/minority issue.  It is about fundamental rights and those accrue to individuals, not to groups.  Women are not a minority interest group, nor are human fetuses.  Each is an individual whose individual rights are at stake.  Roe v. Wade ruled that a woman’s right to an abortion is, like personal freedom from enslavement,  fundamental—yes, subject to certain restrictions, but those are to be established by Congress or SCOTUS, not by the states.  That certain states have a majority that oppose abortions is irrelevant to the issue.  The stakes are not merely theoretical.  Already we have seen what misogynistic state legislatures, thanks to Dobbs, intend to do with their newly awarded “states’ abortion rights.”

Because health and life are universal values, there is no philosophical case for “states’ rights” in the matter of abortion law.  In integral terms, states are subholons to the national holon in all matters specified by the Constitution and federal law.  The subholon must not be allowed to subvert the purpose of the higher level holon by undermining or usurping its legislative authority.  That’s the principle behind Article VI of the US Constitution, the “Supremacy Clause.” The protection of women’s rights to healthcare and bodily autonomy is a national purpose.  Similarly, because life is a universal value, the interest in protecting fetal life is also an item of national purpose, not any individual state’s.  Therefore, states’ rights should have no place in any new national legislation on abortion rights. 

 Conclusion

The Supreme Court’s ruling in Dobbs was a terrible decision, and McIntosh should have said so, a judgment that would have enhanced the appeal of his ideas.   Apart from that, SM’s proposal for a national agreement on abortion rights is on solid ground only with the first term of his trimester model—the “civil right” of a woman to an abortion during the first 15 weeks of pregnancy.  The rest of the model is severely flawed: constitutionally, because it presupposes the legitimacy of the Dobbs ruling; and logically, because it commits the category mistake of linking women’s rights and fetal rights with states’ rights.   Politically it has no future, because neither traditionalists, modernists, nor progressives could ever accept the proposed compromise as a win.  Much as we might wish otherwise, a win-win compromise on the basic issue—does a woman have a right to an abortion—has never been possible.  Integral philosophy tells us that there will always be a significant segment of the population who become stuck at an absolutist stage of moral development.  That’s the religious right-wing.  They will always be with us, and they will never compromise.

Any new national legislation on abortion rights will probably look something like Roe v. Wade.  Better yet would be the Canadian solution: no restrictions whatsoever on a woman’s right to an abortion.  Either would be a win for modernists and progressives, and it would be the responsibility of traditionalists as citizens of a democracy to find a way to accept it.  Given our history, that doesn’t seem very likely, so the culture war over abortion, sadly, will grind on into the indefinite future.

 

 

 

 

 

 

 

 

 America’s Immoral Proxy War in Ukraine

“Proxy wars are conflicts in which a third party intervenes indirectly in a pre-existing war in order to influence the strategic outcome in favour of its preferred faction. Proxy wars are the product of a relationship between a benefactor who is a state or non-state actor external to the dynamic of the existing conflict (for example, a civil war) and the chosen proxies who are the conduit for the benefactor’s weapons, training, and funding. In short, proxy wars are the replacement for states and non-state actors seeking to further their own strategic goals yet at the same time avoid engaging in direct, costly, and bloody warfare.” (A Concise Oxford Dictionary of Politics and International Relations, 4th ed. 2018)

It seems to be generally acknowledged that the US is fighting a proxy war against Russia by assisting the Ukrainian military with weaponry, intelligence, etc.  Defense Secretary Austin admitted as much in his public comments on April 25.  I argue here that, while not all proxy wars are immoral, the current one fought by the US against Russia in Ukraine is immoral. The argument is based on Kant’s categorical imperative, which he held can be stated in two versions:

1)  Always act according to that maxim that you can, without contradiction, will to be a universal law.

2)  Always treat people as ends, never as means.

There has been much debate about these formulations, but something like both of them are part of a wide consensus on how actions are to be morally assessed.For example, arguments against slavery in Britain and America were based on something like Version 2. That principle also implies that proxy wars are immoral when they involve a nation A adopting as policy the use of citizens of country B to fight a war against an enemy of country A for country A's own ends.On that basis, the US is fighting an immoral war against Russia. Its strategic aim is to weakento the point where it is no longer a serious competitor for world, or at least Western hegemony., of course, not by actually taking direct part in the fighting. In the words of former ambassador Charles Freeman,USpolicy, "We will fight to the last Ukrainian for Ukrainian independence."

AARON MATÉ:  And why does this view of Ukraine as essentially cannon fodder against Russia, why is it so prevalent in Washington?

CHAS FREEMAN:  This is essentially cost-free from the United States as long as we don’t cross some Russian red line that leads to escalation against us.  We are engaged, as Professor Cohen said, in a proxy war, and we’re selling a lot of weapons.  That makes arms manufacturers happy.  We’re supporting a valiant resistance, which gives politicians something to crow about.  We’re going against an officially designated enemy, Russia, which makes us feel vindicated.  So, from the point of view of those with these self-interested views of the issue, this is a freebie The Gray Zone.                                                  

The US has justified its assistance to Ukraine with weapons and other resources by claiming Russia’s invasion was an unprovoked aggression.  (Never mind that the US has itself carried out several unprovoked aggressions since WWII.)  In itself there is nothing wrong with assistance of that sort as long as it accords with international law.  In other words, assisting another nation at war is not necessarily a proxy war.  It becomes one when the assisting nation has a hidden or not so hidden agenda that furthers its own national interest when that aim may not align with the goals of the attacked country.  In the present crisis, Ukrainians may not care whether Russia’s military remains strong or weak after the war ends.  They just want the Russians out of their country and their captured territories restored to Ukrainian governance.

Indirect participation in a war against an aggressor can be justified only if (1) the war itself is just and (2) the aims of the assisting nation align with the aims of the nation being attacked, as was the case with the American lend-lease program for aiding its European allies during World War II prior to its own entry into the war.  In the current crisis, the Biden administration can credibly claim that it wants the same outcome as the Ukrainians—restoration of Ukraine’s independence and territorial integrity — but the additional strategic aim of weakening Russia is not so easily defended.  Pursuing that goal may incline the US to prolong the war to the disadvantage of the Ukrainian people.

There is evidence that that is exactly what is happening.  From the beginning, the Biden administration has been supplying Ukraine with just enough weaponry to put up some kind of fight against the Russians on the ground— rifles, ammunition, grenades, anti-tank and anti-aircraft weapons, etc.—but not the full array of weaponry Zelensky was constantly pleading for that would enable Ukraine to win the war.  Not only did the US refuse to establish a no-fly zone over Ukraine, as requested, but they also refused to supply fighter planes and even prevented Poland from sending some of its fleet of jet fighters.  [Interestingly, Russia has not been able to defeat the aging Ukrainian air force with its 10-times more units of modern jet fighter bombers Forbes.]  Only in the last couple of weeks has the US agreed to supply Ukraine the state-of-the art rocket systems, but only on condition that Ukraine not shoot them at targets in Russia.  Hard to see how Ukraine can prevail without attacking Russian bases and supply depots.

Clearly the US does not want Ukraine to win but rather to fight a long-drawn-out war of attrition to weaken the Russian military to a level deemed sufficient for US strategic needs.  That is to use Ukraine’s army as a means to an end set by the US, not by Ukraine, and that means the US is fighting an immoral proxy war against Russia.  This, of course, goes unremarked in the media, because appeals to modern norms of morality in regard to international affairs has long been considered quaint.