The New York Review of Books%3A The Threat from the Sea

The Ocean is a Wilderness:

Here is a review of new book on the law of the sea, which is nothing other than lex talionis, with Mother Nature herself issuing the retribution. Skip down past the environmentalist hand-wringing to get to the real meat of the review. It speaks to reflagging, the ease with which outlaws can change their names and nationalities if only they own a ship, and the perils it all poses for asymmetrical warfighting.

As dangerous as it is, I can't help but think that the freedom of the sea is positively and finally healthy. As Howard Pyle put it:

Is there even in these well-regulated times an unsubdued nature in the respectable mental household of every one of us that still kicks against the pricks of law and order? To make my meaning more clear, would not every boy, for instance -- that is, every boy of any account -- rather be a pirate captain than a Member of Parliament?

Is that not true? But we have these dangers to contend with, also. We've as much as admitted that we can't allow an outlaw space anywhere on the land, any land.

In the United States, we have long tried to resolve this question through the mechanisms of Constitutionalism and Federalism. Constitutionalism tries to put certain parts of human behavior beyond the power of government either to do or to refuse to allow. Federalism tries to allow different communities to have different rules governing the remaining matters, so that people may choose a place to live where they can have the life and the particular freedoms they desire.

Both of these mechanisms are collapsing under the stress of the federal judiciary. The law of unintended consequences is the primary culprit: a series of expansions of federal power, each intended to address a specific wrong of particular magnitude, has come to unbalance the entire American project. The 14th Amendment, which is the primary threat to Federalism, was undertaken to address great wrongs; but now it is used to address any deviation from the judiciary's single "correct" path, on any question at all. At last, we shall either unmake the 14th Amendment, or the Republic, or we shall have a single answer to every divisive question: abortion shall be either forbidden or permitted in all cases everywhere; guns shall either be kept and borne in every place, or no place; gays shall marry in every state, or no state; flags shall be burned everywhere or nowhere. This singlemindedness is finally to no one's advantage, and yet it is unavoidable because of the mechanisms of the 14th.

Constitutionalism has been under assault since the Founding, by the process which Lincoln called "the silent artillery of time." Exceptions made in each extraordinary case become precedents for future exceptions; at some point, what finally dies is the idea that the Constitution is real or binding. The recent enaction of campaign finance reform proves it: exactly the speech the founders intended to protect, the single type of speech that mattered most to them and that they most wished unfettered, is the one the Congress, the President, and the Supreme Court all agreed to limit and fence. Every amendment (including the 3rd, during the various occupations of the Civil War) in the Bill of Rights has been so often violated that the judiciary now makes only passing reference to them at all.

If we find it necessary to bring all the land and even the sea under the law, and if we find it in our power to do so, we must think carefully about how to retrench on the questions of human liberty. What the federal judiciary is doing at home, the treaty system of the UN is attempting to do abroad: impose a single system on every nation. The treaties of Kyoto and Rome are only two of the more frequently cited examples; all treaties are of this model. We see that the UN is preparing to unveil a "light arms" treaty that would, if enacted and ratified by the United States, repeal the 2nd Amendment without the bother of the Constitutional process, but by simple majority vote. The treaty, intended to provide a mechanism for resolving some of the problems of Africa and the -stans, would be imposed likewise on all people everywhere.

These are the Members of Parliament today, these courts and diplomats. I say that Pyle was right: that not only a boy of any account, but any worthy man, should rather be a pirate.