War is in fact the true nurse of executive aggrandizement.*
—JAMES MADISON
Which would you choose: To be free or to be secure? State security and personal freedom often run along tense lines with each other, but our Constitution and its philosophical roots clearly bias freedom over safety. In many ways, the first hundred years of American history represented a struggle between various presidential, congressional, and judicial precedents—both good and bad—to arrive at a philosophical and constitutional consistency for ensuring a free, yet secure nation. From the Revolution to the fall of the Federalists, to the Civil War and Reconstruction, America’s textual commitment to personal freedom was tested in the exigencies of war. This part explores the philosophical roots of the freedom bias, the constitutional allocation of war-making authority, and the events just described.
Individual Rights, Personal Autonomy, and Self-Ownership
What is the philosophical basis for a constitutional bias in favor of personal freedom? By examining the Enlightenment philosophies that influenced our Founding Fathers and scrutinizing war as a mechanism for enlarging state power, we arrive at a lens through which the legal history of personal liberty in a free society and war waged by the state may be properly construed.
When our Founding Fathers drafted the Constitution—the successor document to the Articles of Confederation—they recognized that the proper role of government is not a nanny or Big Brother but a limited entity designed to protect the people’s natural liberties. “The Fathers rather frequently indicated that our rights were founded on the law of nature.”1 Almost uniformly, individuals like Madison, Jefferson, and Washington subscribed to the concept of the Natural Law and the inherent dignity of all persons:2 A dignity that bears with it the promise of “certain unalienable Rights, . . . among [which] are Life, Liberty, and the Pursuit of Happiness.”3
This belief in inherent human rights permeated through the drafting of the Constitution. The influence of the Enlightenment philosophers John Locke and Thomas Hobbes upon the Drafters anchored the document in Natural Law and personal liberty, and an eye toward its preservation.4 In fact, the Drafters enshrined the protection of the rights inherently held by persons prior to any social compact in the Constitution itself, as the Ninth Amendment provides that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”5 The Supreme Court, while eschewing the phrase “natural rights,” has been more than willing to find indistinguishable “unenumerated, fundamental rights.”6 The use of the word retained all but tips the Framers’ hands as to their recognition of the source of rights as being individual humanity.
Underpinning this legal recognition of natural rights is an understanding of liberal philosophy, not liberal in the modern misuse of the word, but in its original meaning. John Locke was considered a classic liberal,* espousing philosophies which recognize the inalienable dignity and self-ownership of every human being. Beginning with Saint Thomas Aquinas and Fr. Francisco Suárez, passing through John Locke’s Two Treatises of Civil Government, proceeding into Thomas Jefferson’s Declaration of Independence, and continuing to the modern philosophies of Ludwig von Mises, Friedrich Hayek, Ayn Rand, and Murray Rothbard, a classic liberal or libertarian theory offers a world vision based on the premises of self-ownership, personal autonomy, non-aggression, and the primacy of the individual over the state.
The State of Nature and Natural Rights
Classic liberal philosophy begins in the State of Nature. In Hobbes’s Leviathan, the world without the government is nasty; however, it was John Locke who advanced a theory of the State of Nature that underpins our constitutional constructs and provides a valid basis for a limited constitutional government based solely on the consent of the governed. The Lockean State of Nature, or the natural state of mankind, is an anarchy and exists in any territorial region without a legitimate government. Since our rights come from our humanity in the State of Nature, they pre-exist any legal system, and the depth and reach of a person’s rights are absolute. Every person has individual sovereignty, the absolute right to possess and control his person and rights:
[The State of Nature] is a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection.7
The core concept of Natural Law is the idea of self-ownership and limitless personal liberty. However, “[t]he state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it.”8 Locke leaves his readers with an unsatisfactory anarchy, governed only by a discoverable-through-reason Natural Law and self-help as an enforcement mechanism.* Like Hobbes before him, Locke recognized that life in the State of Nature could be “solitary, poor, nasty, brutish, and short,”9 affirming that the State of Nature is “full of fears and continual dangers,”10 as no perceptible mechanism exists for a weaker person to enforce his natural rights against a stronger person infringing upon those rights.11
In order to resolve this issue of perfectly equal rights with perfectly unequal protection, individuals yield some of their rights or liberty to a government via a social contract.12 Such a contract, like our Constitution, states expressly the role, powers, and limitations of the government and is legitimized by the consent of the parties to the contract.13
Some theorists, most notably Lysander Spooner, argue that the Constitution does not serve as a valid social compact because no one has expressly consented to it since the 1780s.14 In his three-part work, No Treason, Spooner argued that former Confederate soldiers were not guilty of treason, as none of them had ever agreed to the Constitution, and the North had violated it with the suspension of liberties during the war.15 Locke, however, distinguished between tacit, or implied, and express consent, arguing that people tacitly consent to being governed by virtue of living and participating in the society, of which the Constitution is the Supreme Law of the Land.16
Regardless of to which school of thought one ascribes, the core concept remains unchanged. Because humans are inherently sovereign over themselves qua the principle of self-ownership, only when they consent to give up that sovereignty to the state in order to legitimize the state’s exercise of sovereignty over them is the state’s power morally legitimate. In essence, whether dealing with Locke or Spooner, personal sovereignty mandates the necessity of personal consent to any form of government for it to be morally legitimate.
Leaving the State of Nature: Consent, Government, and Law
Thus, leaving the State of Nature involves the creation of a limited, principled government.* The primary tenet of government under a libertarian scheme is the Non-Aggression Principle, which provides that all violence or threats of violence against a person or his legal property are inherently illegitimate.17 The Non-Aggression Principle essentially provides that any unconsented to interference with a person or his things—beneficial or harmful—is unlawful.18 This definition does not include aggression in self-defense.19
Under a minimalist conceptualization, a government exists solely to protect the people from “aggression”—force or fraud—or at least to provide a forum for the people to protect themselves from force or fraud.20 Any other exercise of government power beyond defending against and adjudicating matters of force or fraud—beyond defending natural rights—is illegitimate aggression itself, and thus, an improper assault on natural rights.21
Although Locke best articulated the structure of society and state, the modern articulator of the Natural Law itself is Saint Thomas Aquinas. In the Summa Theologica, Aquinas wrote that the Natural Law exists above the laws of man and that the validity of the laws of man depends on their compatibility with the Natural Law.22 Moreover, and more famously, Aquinas reinforced his positive position with a negative bar adapted from Augustine’s lex iniusta non est lex? philosophy. Aquinas argued that the laws of man which do not comport with the Natural Law in some qualifying sense are laws only in the most narrow and hollow sense, with nominal ontological validity and no deontological force.23 More simply, in a metaphysical sense, they are only really laws insofar as they are printed and promulgated, but they have no real moral or ethical binding force to impose a duty of obedience.
Accordingly, through Locke and Augustine, there is a complete scheme of natural liberty. All persons are born with absolute and autonomous moral control over their bodies, over their property, and over their labor,24 tempered by the limited surrender to the government of their individual rights, for example, the right to enforce the Natural Law. That is to say, after leaving the State of Nature, people have an unlimited right to exercise all personal liberties that they have not delegated to the government: “This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature [such action is abrogated].”25 An abrogation of those rights not in accord with the Law of Nature lacks validity. In order to administer the Natural Law and to prevent force or fraud, a minimal state ought to be formed; and in order to control the state, a constitution, a supreme law of the land, needs to be adopted, enacted, and accepted by all over whom the state can govern.
It is the central purpose of this work to explore the exercise of constitutional war powers by the President of the United States of America in the era after September 11th 2011, through the lens of the Natural Law and the U.S. Constitution, namely, by addressing purportedly lawful presidential encroachment on an individual’s enjoyment of self-ownership and natural liberty and constitutional guarantees.
War as an Organ of State Health and Power
No single action—by any branch of the federal government pursuant to any constitutional provision—has had the breadth and afforded deference as an action pursuant to the war power. War is a double-edged sword: It is a jingoist boon and an individual-rights bust.
“War is the health of the state,” Randolph Bourne famously proclaimed in his 1918 essay, “The State.”26 Ostensibly, this notion is counterintuitive: How can something which kills innocents as well as combatants, costs an astronomical sum, and has untold destructive potential be the health of the state? In answer, Bourne argued persuasively:
The moment war is declared, . . . the mass of the people, through some spiritual alchemy, become convinced that they have willed and executed the deed themselves. They then, with the exception of a few malcontents, proceed to allow themselves to be regimented, coerced, deranged in all the environments of their lives, and turned into a solid manufactory of destruction toward whatever other people may have, in the appointed scheme of things, come within the range of the Government’s disapprobation. The citizen throws off his contempt and indifference to Government, identifies himself with its purposes, revives all his military memories and symbols, and the State once more walks, an august presence, through the imaginations of men. Patriotism becomes the dominant feeling, and produces immediately that intense and hopeless confusion between the relations which the individual bears and should bear toward the society of which he is a part.27
Bourne’s essay is not famous simply for that biting analysis of the psychology of war, but also for its specific discussion of individual liberty subsuming to state power. He gave one of the most comprehensive descriptions of war hysteria to date. Bourne did not limit his analysis to broad feelings, but concretely discussed the state’s assault on dissident or unpopular opinions, even specifically reaching an infamous case discussed in chapter 5, Abrams v. United States.
. . . Minority opinion, which in times of peace, was only irritating and could not be dealt with by law unless it was conjoined with actual crime, becomes, with the outbreak of war, a case for outlawry. Criticism of the State, objections to war, lukewarm opinions concerning the necessity or the beauty of conscription, are made subject to ferocious penalties, far exceeding in severity those affixed to actual pragmatic crimes. Public opinion, as expressed in the newspapers, and the pulpits and the schools, becomes one solid block.
. . . A white terrorism is carried on by the Government against pacifists, socialists, enemy aliens, and a milder unofficial persecution against all persons or movements that can be imagined as connected with the enemy. War, which should be the health of the State, unifies all the bourgeois elements and the common people, and outlaws the rest.
. . . The punishment for opinion has been far more ferocious and unintermittent than the punishment of pragmatic crime. . . . A public opinion which, almost without protest, accepts as just, adequate, beautiful, deserved, and in fitting harmony with ideals of liberty and freedom of speech, a sentence of twenty years in prison for mere utterances, no matter what they may be, shows itself to be suffering from a kind of social derangement of values, a sort of social neurosis, that deserves analysis and comprehension.28
What is gained from Bourne’s somewhat-over-the-top rhetoric is an understanding of a nation during war: A galvanized people fearful of dissent and willing to accept suppression of their and others’ natural rights to free speech based on the seemingly xenophilic content of a viewpoint alone.
Not to belabor an obvious point, one I have previously made,29 but individual autonomy suffers incomparably during war: The rights to life and liberty are abrogated by the draft or internment camps;30 the right to free expression is limited whereby the mere distribution of literature the government hates or fears (and condemns as “subversive”) can lead to jailing;31 the right to property and to contract is destroyed by rationing and industry boards designed to control and set prices;32 most recently, the right to private association and the natural right to privacy have been trounced by the dawning of government programs designed to snatch the identifying information, the geolocation data, and the content of almost every telephone call, and e-mail.33
Debunking Myths: Freedom as a Bias Against Security, Not a Balancing Act
Americans have a fundamental disconnect between understanding goods and rights, which has led them to a determination that freedom and security must be balanced. This section focuses on debunking that odious misconception.
Rights, specifically natural rights, are intangible and enforceable personal legal choices that are inalienable and exist a priori to any political or economic system, and for the exercise of which one does not need government approval. A good is a commodity or service that is the result of a mixing of an individual’s labor and resources, and either others’ labor, resources, or both. One is the inherent product of human character and existence that cannot be exchanged or assigned—even via a market—and the other is derivative of one’s or another’s labor, which is freely transferable and developed for a market. By way of example, the freedom of speech, the freedom of movement, and the freedom of self-defense are intangible and legal rights: One cannot sell or alienate them.34 Conversely, military contractors responsible for large parts of Joint Special Operations Command (JSOC) and CIA operations all over the globe are private firms that sell goods and security services to the highest bidder. Thus, security and legal services are goods that result from a policeman or a lawyer mixing his or her labor with resources like guns and legal memoranda or, more commonly, like a gym membership or health insurance. Rights come from within us. Goods are purchased by us. Without rights, we lack humanity. With rights, we can accumulate enough wealth to purchase goods.
This brings us to our balancing problem: How can one balance a derivative against an a priori right? One cannot. In order to create a social arrangement that validly enacts laws or defines man’s relationship to other persons and their property, the underlying premise of self-ownership and natural rights both precedes and acts as precedent to the lawful acquisition of any good.35 As was just demonstrated, security, like that provided by the government, is a good, which cannot be freely exchanged between persons or entities, like states, without first recognizing a priori natural rights. Therefore, in considering the good of security and the right of free speech, no balancing act is possible or even conceivable; on the contrary, there is a bias in favor of precedent freedom and natural rights at the expense of consequent goods. Rights and goods are essentially and metaphysically so different that they cannot be balanced against each other.
Complicating this scheme somewhat is a theory of precedence of rights, for example, that the right to life precedes the right to property. The best way to illustrate this is by a hypothetical situation. Imagine that Jean Valjean, the character from Les Misérables, has just stolen the bread to feed his starving family. Javert, the ardent police officer, is a perfect example of “legalists in Western literature,”36 as his moral code comports totally with the legal code. If Javert arrests Valjean for the crime of theft, is Javert right to do so? Some might think that, yes, Valjean violated another’s right to property, and he should suffer the penalty. That represents the Javert-legalist perspective. Another perspective is that the right to life of Valjean’s family is superior to the ownership right of the person whose bread was stolen, and thus, necessity creates an exception to what would otherwise be a violation of natural rights: “St. Thomas Aquinas, in Summa Theologiae, opined that the natural law requires whatever material things a person possesses in superabundance be used to help the poor, and further stated that such goods may be taken by a needy person in a time of imminent danger. John Locke similarly declared that, in the state of nature, the needy have a right to the ‘[s]urplusage’ of their fellows.”37
This section provided a brief view of the classic liberal utopia: A place where rights do not succumb to goods, where rights are inherent to the human condition, where the only lawful government is that which prevents force or fraud by means of a social compact that respects a priori rights, and where all are aware that war—the state’s mode of protection against aggressive external force—is an instrument to strengthen the unity of the state at the expense of individual liberty.
* James Madison, Writings of James Madison: 1790–1802, ed. Gaillard Hunt, vol. 6 (New York: G. P. Putnam’s Sons, 1906), 174.
* Llewellyn H. Rockwell Jr. concisely explained,
In the 18th and 19th centuries, the term liberalism generally meant a philosophy of public life that affirmed the following principle: societies and all their component parts need no central management and control because societies generally manage themselves through the voluntary interaction of its members to their mutual benefit. Today we cannot call this philosophy liberalism because the term has been appropriated by the democratic totalitarians. In an attempt to recover this philosophy for our own time, we give it a new name, classical liberalism [or libertarianism].
Llewellyn H. Rockwell Jr., “An American Classical Liberalism,” Ludwig von Mises Institute, 1996, http://mises.org/etexts/classical.asp. Rockwell has been appropriated by the democratic totalitarians. In an attempt to recover this philosophy for our own time, we give it a new name, classical liberalism (or libertarianism).
* “[M]an in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” John Locke, The Two Treatises of Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764), bk. 2, §6, emphasis added, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=222.
* While some libertarians, most famously Murray Rothbard, argue for an anarcho-capitalist approach to government—that is to say there may be no monopoly on state power by consent of the governed, but if states exist then the reach of their monopoly should be systematically minimized. See Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), 161–273, 193. This book is of the opinion that in early twenty-first-century America a minimal state is necessary. A history of the exercise of state power in its constitutional and rightful role would hardly go anywhere by denying the premises of any governmental powers at all. That need for a minimal state is a view shared by many mainstream libertarians and objectivists such as John Locke, Ludwig von Mises, Friedrich Hayek, Robert Nozick, and Ayn Rand. Suffice to say that Nozick’s argument that a private judicial/defense firm in an anarcho-capitalist state would eventually arise as a monopolist by purely market forces, thus creating a de facto government, is compelling. See Robert Nozick, Anarchy, State, and Utopia (Hoboken, NJ: John Wiley & Sons, 2001), 88–148.