THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Under this statute, public health officials could compel a person to submit to a physical exam or a test without a court order. Physicians and other health workers could be forced to do this testing. While court orders would be required for quarantines officials could quarantine first and go to court afterward. Officials could compel persons to be vaccinated or treated for infectious diseases. States would have broad emergency powers to confiscate property and facilities, including subways, hospitals, and drug companies.

  This statute implicates a number of significant constitutional issues: (I) Should the federal government, rather than the states, be empowered as the effective public health actor in such a crisis? Currently federal authority relies on the Stafford Act, which is far too narrow and restrictive to help in such an emergency; if, however, state and federal authorities are not clarified, we could face the prospect of paralysis or even intergovernmental violence. (2) Does the federal government have the constitutional power, in light of recent Supreme Court cases, to adopt legislation similar to that in the proposed model act? The federal government does have ample emergency powers in war and it may be that a terrorist attack could engage those authorities. But it might also be that an outbreak of an infectious epidemic will occur without the disclosure of its origin. Other federal consti-tutional powers, such as the commerce power, that might serve as the basis for federal action have been sharply restricted by recent caselaw as the United States moves toward market-state constitutional rules. (3) How might the civil liberties of Americans be safeguarded in such a statute, state or federal? Questions such as the limits of public health surveillance, the requirement of mandatory disease reporting, confidentiality, compul-ssory vaccination, testing and screening, isolation and quarantine, compulsory physical examination—all these issues implicate the Constitution's guarantee of due process and its commitment to personal and physical autonomy. Other questions might arise regarding the guarantee of equal protection. For example, in the early 1900s, San Francisco imposed a quarantine to halt a tuberculosis epidemic, but applied the quarantine only to Chinese Americans. In the 1980s HIV-infected students were often barred from public schools and several states passed laws allowing AIDS patients to be quarantined.

  The potential twenty-first century conflict posed by this problem is one of civil war.

  (7)

  The revolution in military affairs that won the Long War is currently bringing us the market-state. The emergence of this new form of the constitutional order will be accompanied by new forms of warfare. In these final paragraphs I should like to speculate about these new forms. In other words, if the current revolution in military affairs, taken in a broader sense than simply the latest technology, is a consequence of the threefold phenomenon of nuclear and other weapons of mass destruction, international telecommunications, and the power of rapid computation, and if the market-state is the constitutional consequence of this revolution in military affairs, what is the next revolution in military affairs that is a consequence of the market-state? I venture the guess that it will be a result of advances in biogenetics and that this development will challenge the meritocracy on which the market-state depends.

  Thus the knowledge and techniques that will make biological super-weapons available to the market-state and its adversaries may ultimately bring about the new form that will supersede that state. First, the dispersal of these techniques to market actors—corporations that run hospitals, pharmaceutical labs, vast agribusinesses, and the like—will inevitably have the consequence of proliferating actual weapons to those who wish to destroy the market-state. Second, the open society on which the market-state depends and which it does so much to foster will find it more difficult than the nation-state to assert legal control over biogenetic knowledge and weaponizing. The public will call for measures that are highly intrusive and oppressive, and these too will undermine the ethos of the market-state. Third, the fundamental idea of the market-state—that equality means treating those equally endowed in an equal way*—will be shattered when the means of altering our natural endowment of intelligence, beauty, emotional stability, physical strength and grace, even sociability, is available at a price. The market-state will have to decide how to distribute such benefits, having thrown away the basis on which it was created to make such decisions, namely, the cultivation of natural merit. And this development creates a fertile environment for violent civil conflict.

  CHAPTER TWENTY-SEVEN

  Peace in the Society of Market-States: Conclusion to Book II

  The means that nature employs to accomplish the development of all faculties is the antagonism of men in society, since this antagonism becomes, in the end, the cause of a lawful order of this society.

  —Kant, Idea for a Universal History

  with Cosmopolitan Intent (1784)

  ALTHOUGH THERE ARE intended to be many parallels between the arguments and structure of Book I, “State of War,” and Book II, “States of Peace,” it is hoped that either book could stand alone. Book I addresses the State: its modern birth and its morphogenesis from chamberlains waiting on Renaissance princes to the complex and varied bureaucracies of the market-states of the twenty-first century. “States of Peace” is addressed to the collectivity of modern states. Because that collectivity is built out of individual states, the dynamic relation between strategy and constitutionalism that drove the development of the State is also reflected in the development of the society of states. There is, however, one profound difference: whereas it was violence and disorder that animated the development of the law and strategy of the State—the State's need to monopolize the control of legitimate violence within, and to be free of violent coercion outside its boundaries—it was peace and reconciliation that animated the development of the society of states—that society's need to find consensus on the legitimate basis for admission to the society and to maintain harmony and stability among its members. On November 9, 1989, twelve states met in Canberra and created the organization for Asia-Pacific Economic Cooperation (APEC). On that same day the Berlin Wall came down. The first event belongs to Book II; the second, to Book I. Who can say today for which event November 9, 1989, will be remembered in twenty-five or fifty years' time?

  Book I ended with the emergence of the market-state in its various forms. These variations are the result of different historical attitudes about the degree and nature of sovereignty that is retained by the people of the State. Such differences were reflected in different provisions for human rights and the differing responsibilities that were assumed by the State for the economic security of its citizens. Some states, like the United States, hold that all government power is derived directly from a portion of the sovereignty of the People. These states tend to enforce expansive human rights for individual expression but are less supportive of the assured status and income security of citizens. Others, like the city-state of Singapore, are more authoritarian because they hold that sovereignty lies in the State and rights are granted to the People. Still others, like France, hold that while sovereignty lies in the People, it has been wholly delegated to the State for the benefit of the People, and this responsibility is reflected in the public policies of such states, which tend to be more concerned with maintaining the social contract.

  Imagine a society composed of such different kinds of market-states. How does such a society achieve consensus? Does it need to achieve consensus? What might such a consensus accomplish?

  One necessary step is to factor the interests of the society of states into a state's calculations of its own vital interests. One of the barriers to the consideration of the interests of the society of states has been the nonterritoriality of that society. Where is it? Over what territory does its flag fly? Who speaks for its interests? Is its jurisdiction universal? If it is everywhere, then does it supplant the jurisdiction of the individual states? If the paradigm of the legitimate constitutional form of the state is the nation-state, then must the society of states be composed of one gr
eat nation—mankind, perhaps? If the domain of the society of states is not everywhere, then is it confined to the property around the U.N. and other global organizations? Or on the high seas, beyond the littoral claims of states, in what are called “international waters”?

  If we concede that the society of states is not territorial, then presumably it cannot be a sovereign. If it is not a sovereign, then it cannot generate law nor make war. It cannot set up rules for intervention, or act on those rules. If, on the other hand, we accept that sovereignty is not necessarily a matter of territoriality where would this end? Would the Red Cross be a state? Or Citicorp? Or Al Qaeda?

  Nation-states could only delegate sovereignty legitimately when a larger nation was created, as for example, by the union of Egypt and Syria, which was called the United Arab Republic, or when a previous state fragmented, as for example, when Ukraine, Russia, and other republics succeeded the USSR. International bodies, like the U.N. and the ICJ, were legal bodies composed of representatives of sovereigns. They were not sovereign themselves.

  Market-states can legitimately augment these representatives with agents hired by contract, that is, through markets. Such agents are nonterritorial, like other market entities. On this basis some institutions, like the IMF, would have fiduciary responsibilities to some states; this responsibility, therefore, would not axiomatically be universal. Some institutions, like NATO, could—under the terms of a contract with its constitutive partners—even wage war, though they could not make peace settlements (because, as mere agents they cannot make law). Other institutions, like the U.N., or the World Bank or the ICJ, would lapse into more circumscribed, though still valuable, roles than the ones they occupy today as representatives of the society of nation-states.

  What a pluralist society of states needs are practical means of cooperation—alternatives to the nation-state institutions that span the different forms of the market-state. Agreements to set up consortia among market-states might provide one such mechanism. The very process of hammering out such agreements could be a useful way of achieving consensus. The responsibilities of these various ad hoc consortia would include the protection and advancement of the interests of the society of states—though once again, the “case-law” generated by their practices would not be universal as it would apply only to voluntary participants, and the war-fighting functions of such groups would not admit of an independent peacemaking authority. These consortia will be modeled more on multinational corporations or cartels than on states, in part because they are nonterritorial. They can either be a force for consensus and harmony—because they effectively aid the efficient functioning of the global market, human rights, and the information that links the two—or they can harden into competing alliances with limitless capacity for conflict. Corporations, after all, are designed to compete.

  States recognize that it is not territoriality alone that they must defend, but rather also nonterritorial interests. Such a recognition runs against the grain of the leaders of states. Thinking of the State as essentially territorial comes naturally in light of how modern states began, and their close identification of sovereignty with the body of the prince. We even speak of the body politic, and also of the territorial integrity of the state when it is whole.

  Nevertheless, threats like those posed to the critical infrastructure of states are fundamentally nonterritorial. The computer attack via the Internet that disables a power grid or a telecommunications link is not really a territorial attack. An attack on the critical superinfrastructure that binds the developed world ever more interdependently is actually an attack on the assets of the society of states, on which individual states may depend but which they do not own any more than they own a market in raw materials, or a market in currencies.

  Such a change in attitude about the nonterritorial interests of states is bound to come with the advent of the market-state. Also, there will come changes in how territory itself is viewed. Each historic society of states has favored a particular means of resolving state disputes. Not surprisingly, the society of nation-states favored national partitions (quite unlike the partitions of Poland, for example, in the nineteenth century that made no pretext of accommodating national peoples). Market-states that are defined less by their territoriality and their nations will find other means appropriate to their constitutional form.

  One may speculate that the umbrella, rather than the felt-tipped marker that once limned partition lines, will be one such means. The umbrella is a free-trade and/or defense zone that allows for a common legal jurisdiction as to some, but not all, issues. To put it differently, an umbrella is one out-come of a market in sovereignty. Different umbrellas may overlap. Small societies can shelter within such umbrellas—cultures too small to be viable as separate states—retaining for themselves control over essentially cultural matters.* For such umbrellas to work, however, we must weaken the promise of maximum identical human freedoms for all peoples, because the cultural control that a society wishes to retain (its religious character, for example) may infringe on maximum identical freedom. As Thomas Jefferson wrote in a letter, “the maxim of civil government should be reversed and we should say: divided we stand, united we fall.”

  Umbrellas of this kind might permit the reunion of states that were severed by partition: India, Bangladesh, and Pakistan; the Koreas; Rwanda, Burundi, and Tanzania; Ireland; Palestine—all the states whose insecurity threatens the stability of the society of states and, I might add, that of the United States so long as she chooses to exercise world leadership and thus inevitably attracts the hostility of otherwise remote parties. Moreover such umbrellas offer a constitutional mechanism for ameliorating one of the most significant shortcomings of the market-state, its indifference to community and to culture. Under a multicultural umbrella, many subcultures can dwell, appropriating the economic and defense advantages of a larger territorial scope while retaining the ability to develop different legal regimes within each specific domain. These subcultures will not be states, at least as we have understood the term. Let us call them “provinces.” These may be provinces where feminists or fundamentalist Christians or ethnic Chinese congregate, all within a larger sheltering area of trade and defense. This concept of overlapping jurisdictions offers another way in which consensus might be assisted once market-states emerge. Such markets in sovereignty can be liberating for groups that now feel confined within national sovereignties or ignored within multicultural states. But such markets can also lead to internal conflict as some groups within a state wish to trade sovereignty while others do not; and markets in sovereignty can lead to external conflict as some states feel alienated and marginalized by richer, more encompassing cartels of shared human values.*

  Tentatively we may note these ten constitutional conditions for a society of market-states: (1) the maintenance of a force structure capable of defeating a challenge to peace; (2) the creation of security structures and alliances capable of dealing with the problems of population control, migration, and ecological stability; (3) a consensus among the great powers on the legitimacy of certain forms of the market-state; (4) a few clear, structural rules for any state's behavior that are enforced by arms if necessary, analogous to the society of nation-states' bar against the annexation of any territory without the consent of its inhabitants; (5) provisions for the financial assistance to great powers when these powers undertake to intervene on behalf of the peace and security of the society of states as a whole; (6) prohibitions against arms trading in nuclear materials, weapons of mass destruction (WMD), and missile technology but that permit trade in some defensive, informational technologies; (7) practices for bribing states—by enhancing their security or their wealth—in order to prevent WMD proliferation to any state but especially to major states; (8) prohibitions against wholesale attacks by the state on its own populations; (9) some general prohibition on anticompetitive trade and financial practices; (10) a consensus on the rule that no state that meets the standards of the Peace o
f Paris—free elections, market economy, human rights—ought to be the subject of threats of force.

  These conditions are not the same as those that aimed to ensure stability in the Long War. They are not the same as those sought by the U.S. policy of containment that successfully ended that war. These conditions give greater priority to peripheral conflicts and require greater consensus. They may not cost any less, but they allocate expenditures differently. They address a new class of security problems that will not be resolved any more easily, and possibly not any more quickly, than those of the Long War. Finally, these conditions presuppose a commitment to pluralism that is inconsistent with either relativism or exceptionalism. By pluralism is meant the view that some values are to be preferred to others, and that these preferred values are those democratic and peaceful institutions that permit individuated and diverse cultural development in the context of nonaggressive relations. The reason why the political system of the West is preferred is that it is the only system that allows all states, Western or not, to develop their own cultures. In a society of states committed to pluralism there are preferred values (as opposed to relativism) but no preferred states (as opposed to exceptionalism).