Volume 91

Justifying Self-Defense: A Theory of Forced Consequences

Why do we have a right to self-defense? Over the years, this seemingly simple question has proved difficult to answer. The right to self-defense arises in situations that involve culpable, non-culpable or non-agent aggressors. The difficulty is to find an explanation that justifies self-preference in each of these instances and maintains the moral distinction between the permitted killing of aggressors and the prohibited killing of innocent bystanders.

This Essay examines three lines of justifications that have been developed over the past three decades: lesser harmful results, forced choice and the rights theory. The “lesser harmful result” argument maintains that the killing of the aggressor is a lesser harm than the death of the defender. The “forced choice” argument says that self-defense is either justified because the defender is uniquely forced to choose between his life and the life of the aggressor, or excused because the he lacks real choice. Finally, the “rights theory” justifies self-defense by the prevailing right of the defender not to be killed over that of the aggressor.

This Essay argues that all three explanations fall short of the comprehensive justification needed to answer this question. It develops a new justification based on a theory of forced consequences. This justification combines two principles: the commonly recognized civil-law principle of fault-based selection and the principle according to which—in situations where either A or B must pay the costs for A’s “bad luck”—A must be the one to pay these costs and may not transfer the burden onto B.

Selection Effects in Constitutional Law

The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making “ambition counteract ambition”; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials’ incentives to suppress political opposition; and so forth.

In this experimental Essay, I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of “selection effects.” Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power.

This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove “self-stabilizing”: the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove “self-negating”: the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance, and voting rights to criminal sentencing, free speech, and affirmative action.

Proportionality and Federalization

The literature treats the “federalization” of crime as a quantitative problem. Congress, on this view, has simply enacted too many federal crimes. This Article challenges this way of conceptualizing the federalization problem. The real problem with federalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of federalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable – its enormous scope and its severity – and made them considerably worse.

One of the most significant adverse effects of federalization, which is overlooked in the case law and all but ignored in the literature, lies at the heart of this Article: the danger of disproportionately severe penalties. Poor legislative crime definition, coupled with the judicial practice of expansively construing criminal statutes, allows prosecutors to drive up the punishment federal defendants would otherwise face. Sometimes, courts construe ambiguous statutes to move into federal court defendants who would otherwise face lower penalties in state court. More often, courts expand serious crimes to encompass behavior for which Congress prescribed lower penalties elsewhere. This Article shows how courts can adjust their interpretive strategies to counteract the severity and scope of the federal criminal code so that federalization need not be the disaster that its critics fear.

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