Sovereignty in international law and the drone program
In a discussion of the war on terror and executive power, Chris Preble described a long-standing principle in international law, observed for centuries, under which countries generally respect the sovereignty of other countries and do not violate it casually. He said the United States had generally observed that principle until 9/11, after which violations ramped up dramatically War – A Rationale For Extra-Constitutional Power? (2013).
Preble noted that some countries tacitly approve of US actions but do not wish to admit it to their people, either because they do not want to admit an alliance with the United States or because they do not want to admit they cannot control their own territory. He cited Pakistan as the most upsetting example, pointing not only to drone strikes but to the bin Laden raid, which he said revealed a real weakness and vulnerability in Pakistan’s ability to defend itself and its airspace, because the act was carried out, as far as is known, without their knowledge and they did not react until after it had all gone down. He said this violation of sovereignty raises serious concerns for US foreign policy in relations with these countries, and hoped the administration would spell out more clearly that it takes those considerations into effect and engages in such acts only in very rare cases War – A Rationale For Extra-Constitutional Power? (2013).
Bob Zadek framed the issue as the President’s asserted power to kill Americans on foreign soil, calling it a profound constitutional protection issue for all of us, and noted that Rand Paul brought the broader question to the fore in the filibuster. Preble agreed that the protections afforded to citizens do not stop at the water’s edge and are carried abroad, and characterized the administration’s claim as one that a person forfeits constitutional protections by virtue of being in a foreign place and being suspected of collaborating with certain other suspected people — in effect making the executive judge, jury, and executioner, or at least able to be. He cited the Anwar al-Awlaki case, killed in Yemen a few years earlier, and al-Awlaki’s 16-year-old son, who Preble said was absolutely not a terrorist. Preble described the claim as being that a person essentially forfeits constitutional protections when they cross some threshold that is not particularly clear in his mind, making those protections null and void War – A Rationale For Extra-Constitutional Power? (2013).
Divided sovereignty and the states
Frank Buckley, discussing California’s pandemic-era posture, traced the idea of independence to the concept of sovereignty. He said that at the founding, sovereignty was a stumbling block for the British, who could not understand how a British Empire could contain sovereign entities — they could conceive of only one sovereign. Some at the Framers’ Convention echoed that view, including Alexander Hamilton, Buckley said, but that was not the document that came out of Philadelphia in 1787. Instead, the founding idea was divided sovereignty: a state would be sovereign with respect to state powers, and the federal government sovereign with respect to its powers Did California Just Declare Itself a Nation-State? (2020).
Buckley said the line has since been blurred and that state sovereignty fell into ill repute as a consequence of the way it was used by racists in Southern states. He described the effort to recover the original understanding of American federalism, in which states would be sovereign within their scope of competence, as a good thing, because not all wisdom emanates from Washington, D.C., and because different states trying different things was once called the laboratory of the states. He said competition between the states would let the best ideas emerge Did California Just Declare Itself a Nation-State? (2020).
Bob Zadek, in the same episode, observed that states are in many ways independent of each other and of Washington — citing stay-at-home orders, quarantine, and the police power — and that edicts from Washington on going back to work gradually had been expressed as guidance rather than mandate. He asked whether the states were created in many ways as nation-states, constitutionally independent of the federal government, and whether Gavin Newsom’s yearning to be a nation-state was a done deal because states always have been nation-states Did California Just Declare Itself a Nation-State? (2020).
Sovereignty as an obstacle to charter cities
Mark Lutter, describing the ZEDE legislation in Honduras, said that under the second legislation the city would have relatively close to a blank slate in commercial law, while criminal law would still apply, the city would pay about 12 percent of tax revenues to the government, and the constitution of Honduras and all international treaties would still apply. The free city would have effectively complete autonomy in commercial law, able to set up its own judicial system for civil and commercial cases, its own system for registering a business, and its own labor and environmental regulation The End of Nation-States? (2018).
Asked why the project failed politically, Lutter pointed to two primary factors. The first was the concept of national sovereignty: when he lived in Honduras, most of the pushback he got was regarding this concept, with many people feeling that national sovereignty is sacred and that to give up commercial law — even though the arrangement did not include the constitution, criminal law, or international treaties — violates it and is not feasible from the basic idea of the nation-state. The second was framing: most appointees to the Committee for the Adoption of Best Practices identified strongly as libertarians and with the political right, and branding the project as libertarian set off alarm bells on the left. He added that there would be a few losers — the monopolists in Honduras who would face lower-cost banking and manufacturing competitors — and that opposition was partly based on pure self-interest The End of Nation-States? (2018).
Lutter also clarified that the constitutional barrier was overcome: the original legislation was voted unconstitutional by the Supreme Court, Honduras made several constitutional changes and passed similar legislation later upheld by the Supreme Court, and the ZEDE legislation remained on the books, though to his knowledge no project had yet been approved The End of Nation-States? (2018).
Patri Friedman, discussing Prospera, said there was no question of agreeing or not agreeing to adopt Honduran criminal law: when Honduras created the program by changing its constitution, that was the terms of it, and Honduras is the sovereign country there and gets to set the rules of the program. He said other countries creating such programs offer the opportunity to change that Patri Friedman’s Plan to Accelerate the Free Cities of the Future (2022).
Bob Zadek suggested that in an ideal situation the free city would design its own criminal law system if it could negotiate that with the host country, since criminal law is an extension of morality to some degree, and speculated that a host country enjoying substantial economic benefits might concede and allow the free city to draft its own criminal law so long as it is not terribly offensive to the host. Friedman agreed, describing it as partly a process of gaining trust: building sovereign communities, having them grow and be visited by government officials from around the world who see that it is a better way of life and not something awful or creepy, and then moving along what he called the sovereignty axis. He said his goal is fully sovereign city-states, with many stages to get there, and that the current stage of setting commercial law and soon maybe criminal law is a really solid degree of local autonomy. He described a progression toward semi-sovereign status, still under the country’s sovereignty but with its own independent treaties or visa control, and eventually seeking full recognition when big enough Patri Friedman’s Plan to Accelerate the Free Cities of the Future (2022).
Sovereignty and the Articles of Confederation
William Watkins Jr., discussing the Articles of Confederation, agreed with Bob Zadek’s observation that the Articles said nothing about the relationship between the citizen and his or her government and were a compact between states. Watkins said that under the Articles the Congress did not have the power to act directly upon individuals, and that the states essentially served as mediating bodies between the people and the government of Congress. It was not until the Constitution of 1787, he said, that the national government could act directly on individuals. He described the arrangement as a great palladium of liberty, in which the people would have an intermediary body, the state, to protect them from the national government and the sorts of powers it could impose [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Across episodes: no single arc
The excerpts do not show a developing argument across episodes so much as a recurring word put to different uses: Preble on violations of other countries’ sovereignty in the drone program, Buckley on divided sovereignty at the founding, Lutter and Friedman on national sovereignty as the obstacle to and the framework for charter cities, and Watkins on the Articles as a compact among states. Bob Zadek’s own closing remarks in one episode invoked founding principles and the province of the states, calling for diminishing the power of the federal government over the states, undoing the 17th Amendment, and returning more power to the people Sarah Stillman on Minors on the Sex-Offender List (2016). No excerpt shows a later episode revising an earlier guest’s position.
What the sources do not cover
The excerpts do not state the outcome of any case challenging the drone program, nor the text or holding of any case on executive killing of citizens. They do not give the terms of the ZEDE legislation beyond the features Lutter describes, nor the name or date of the Honduran constitutional changes. Buckley’s discussion of secession is cut off before he addresses its practicalities, and the excerpts do not say whether any free city has achieved the semi-sovereign or fully sovereign status Friedman describes as his goal.