Robertson's urging the government to assassinate Chavez

[Bob Sheridan]

I've seen it said that in Constitutional Law, we're all either balancers 
or absolutists.  Even a self-proclaimed "absolutist" such as Hugo Black, 
I've read, was unable to hold his  line against some conceivable 
hypothetical situations.  By absolutist, in his interpretation of some 
clauses, Black meant that there was no justification for breaching the 
clear, to him, mandate of the text.  No law meant no law.

Taking the argument to presidentially ordered assassination, I suppose 
that I can imagine a president reasoning that if only Premier X of 
Yzylvania, who is a very bad guy and has been making a great deal of 
trouble lately, needs to be eliminated "with extreme prejudice" as I 
recall the term from Vietnam days, in which case the world will be a 
much better place.  So, for humanitarian reasons, X has to go.  This 
will save us untold lives, much as the A-bombing of Hiroshima and 
Nagasaki spared untold American-soldier lives in the anticipated, but 
now unnecessary invasion of Japan's home islands.  We all applauded.

The reason the president may not authorize assassinations very often is 
probably not because of his commitment to the rule of law as much as it 
is that if known, the political fall-out will be too great, not only at 
home, but in the world, where we have other constituencies that we need 
to satisfy.

So, I don't see the president agreeing to forego any weapon in the 
national arsenal, and that includes the N,B,C, nuclear, biological, and 
chemical weapons of mass destruction, as well as assassination, torture, 
and any other horrible thing one cares to name, because when it comes to 
a question of national survival, there's no premium on fighting fair.  
That goes for the other guy, as well as us.  The idea is to emerge on 
top, and if that's what it takes, the argument of academics as to the 
rule of law, is well, somewhat beside the point.

In the meantime, however, i.e., short of that eventuality, I would 
advocate for the non-use of such means and hope that they are not 
employed sub rosa any time soon.

rs

RJLipkin at aol.com wrote:

>         I agree with much of Lynne's post.  However, "The duty to obey 
> the law can narrowly or broadly,  but that doesn't discount Janet's 
> broader point, that governments under the "rule of law" have a prima 
> facie duty to obey that law, no matter what their preferences, whims, 
> etc." simply won't do the job it's intended to do.  Sure, such prima 
> facie duties exist. But that doesn't answer the question of what 
> counts as obeying the law. 
>  
>         And there's nothing positivistic about my position.  Indeed, 
> whether one embraces naturalism, positivism, or pragmatism, the 
> question of what counts as obeying the law arises.  Indeed, on 
> positivist grounds it is typically easier to identify what counts as 
> obeying the law than on other jurisprudential grounds. Much too easy. 
> That's why a positivist should have a greater problem taking seriously 
> my point that what counts as obeying the law is a deep moral question, 
> and not obvious in anyway at all. The assertion that "governments 
> under the "rule of law" have a prima facie duty to obey that law, no 
> matter what their preferences, whims, etc." is unhelpful. Of course it 
> is true, but it is virtually tautologically true, and as such it won't 
> help us settle what counts as obeying the law in general or in a 
> particular context.  A deeper, more complex, moral analysis is 
> necessary. Should governments under the rule of law obey the /law/, 
> and not their preferences or whims. Sure! But again saying so won't 
> provide us with an account of how to distinguish between the former 
> and the latter.
>  
>         I am deeply troubled by the idea of using assassination as an 
> ordinary means of foreign policy.  But I'm much more comfortable being 
> committed to this view on moral grounds than on some unexplicated 
> notion of "obeying the law." I do not reject the possibility that the 
> idea of the rule of law or of obeying the law can be given content 
> that justifies a strong (almost never) presumption against 
> assassination. I just have not yet come across such content.  
> Moreover, my point in this exchange is just that the virtual tautology 
> above won't do.  /Content/ is necessary for it to work substantively 
> and not tautologically, whether we /now/ identify that content or not.
>  
> Bobby
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
>
>------------------------------------------------------------------------
>
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