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Antiwar Libertarians and the Reification of the State:
I hesitated writing my WSJ op-ed, Libertarians and the War because I knew it would provoke a strong reaction from antiwar libertarians, many of whom have been my friends and colleagues for a very long time. That it did. Therefore, I am grateful for the many emails and blog posts thanking me for pointing out that some libertarians disagree with Ron Paul's stance on the war. But I am even more grateful to the many antiwar libertarians who avoided personal attacks and leveled their critique at what they perceived to be my argument rather than against me personally. And I am pleased that very few read my op-ed as an "attack" on antiwar libertarians generally or Ron Paul in particular. To the contrary, one cannot claim as I did that reasonable libertarians can disagree about the Iraq war and, at the same time, dismiss all antiwar libertarians as unreasonable. And I went to some lengths to specify areas of agreement shared by both libertarian supporters and opponents of the Iraq war.

Where most antiwar critics of my op-ed have gone wrong, however, is in asserting that I was attempting to refute their antiwar stance or was offering a defense of the Iraq war on libertarian grounds. That would have been difficult enough to do in a 1400 word op-ed; but was impossible in the 215 words I devoted to why some libertarians disagree with Ron Paul. It should be no surprise, therefore, that they found these 215 words unpersuasive. My sole aim in my op-ed was to inform readers that they should not assume that Ron Paul speaks for all libertarians because it is an undeniable fact that he does not. I have the emails and blog posts to prove it empirically!

[WARNING TO READERS I: LIKE MY WALL STREET JOURNAL COLUMN, WHAT FOLLOWS IS ALSO NOT A DEFENSE OF THE IRAQ WAR! WHILE MY COLUMN WAS ABOUT "LIBERTARIANS AND THE WAR," THIS POST IS ABOUT "LIBERTARIANISM AND WAR." I am sincerely interested in hearing antiwar libertarians' reactions to the analysis below, about which I am genuinely puzzled and have an open mind.]

While a few emailers and bloggers merely asserted that no "true" libertarian could support the Iraq war, the substantive responses to my actual thesis about libertarians and the war were very few. These arguments came largely from radical (or anarchist) libertarians. I have some genuine questions about the coherence of the radical libertarian antiwar position as it is typically presented — questions that would not apply to the same degree, if at all, to a limited state libertarian or minarchist, the antiwar positions of whom this post does not address.

[WARNING TO READERS II: THE TERM "RADICAL LIBERTARIAN" IS NOT BEING USED IN ANY WAY PEJORATIVELY. I AM MERELY DISTINGUISHING THEM FROM LESS RADICAL LIBERTARIANS. AND THIS IS NOT AN "ATTACK." I AM MERELY RAISING SOME QUESTIONS ABOUT THE COGENCY OF THEIR STANCES ON WAR. AND IF YOU DO NOT HOLD THESE VIEWS, THEN I AM NOT WRITING ABOUT YOU.]

In addition to arguments about the costs and risks of wars in general and/or a particular war, the radical libertarian antiwar position typically includes a strong assertion of the following two propositions:

(1) War is Inherently Unjust. Some radical libertarians are antiwar because they say that war is an inherently unjust activity because it is engaged in by governments who are inherently unjust and illegitimate. Moreover government-waged war — that is, "war" as they define it — unavoidably kills innocent persons and violates their rights. Because the U.S. government is illegitimate (as all governments are), so is the war in Iraq (as all government-waged wars are). Whether or not this argument is correct, standing alone, it is entirely coherent.

(2) Foreign Governments are Sovereign. But judging from their emails and blog posts, many radical libertarians who hold position (1) at the same time adopt a hyper-legalistic view of what constitutes a "war of aggression" in which states are treated as though they were individual persons. In other words, they adopt the Westphalian view of nation states and sovereignty, which was devised to recognize and protect the autonomy of the government rulers "their" territory. When making this argument, these radical libertarians treat foreign governments as "sovereigns" to be respected (by the U.S. government) unless they commit or imminently threaten an act of aggression against the territory of another sovereign. Systematically violating the rights of their own subjects or citizens is a wholly internal domestic matter. In essence, these foreign governments are treated IN PRINCIPLE as the just owners of the territories they govern. And their conduct is to be judged by the same rules of self-defense as are individuals.

As with stance (1), whether or not this argument is correct, standing alone, it is entirely coherent. Indeed, it is the mainstream position of international law, or was the mainstream position before the rise of the concepts of collective governance by international organizations like the United Nations and by the doctrine of internationally recognized "human rights," both of which significantly qualified and greatly complicated the Westphalian notion of sovereignty. So it is noteworthy that, when assessing the conduct of the United States government, radical libertarians are committed, not to the current views of international law (as qualified by collective governance and human rights), but to an unqualifiedly pure Westphalian theory.

One might say that, when dealing with issues of (American) foreign policy, these libertarians reify (foreign) states and treat them like individuals, with all the natural rights of individuals. Even if you try to rephrase stance (2) in terms of "the People" of the respective states, at its core, I do not see how this stance can be anything other than deeply, expressly and quite literally "nationalist" — which seems an odd stance for a radical libertarian. (More moderate libertarians do not have this problem; they have others, but this post is not about them.)

There may be many prudential reasons for treating states like people in the international arena, and I am not arguing one way or the other on the usefulness of this way of thinking. I am just noting that radical libertarians seem to hold a particularly ardent version of this commitment to nation states when they assess American foreign policy. And that seems to be in tension with their stance (1) in which all governments are illegitimate, and equally so.

In addition to these two tenets, antiwar radical libertarians also typically hold the following two positions:

(3) The illegitimacy of the United Nations. Many of these same antiwar radical libertarians, Ron Paul included, are ardently opposed to the United Nations as any sort of governing or ruling authority. This stance I believe to be not only coherent, but entirely correct. But as I will note below, this separates them from the currently prevailing view of international law and, as a result, they can make no recourse to lack of authorization by the United Nations or even violations of United Nations directives in offering criticisms of American foreign policy.

(4) The existence of fundamental human rights. I doubt that any radical libertarians would question the existence of fundamental "human rights." (Indeed, that is part of their argument in (1) above that all war is unjust because it violates the rights of innocents.) Again, I think this stance is not only coherent, it is correct. But again, this means that their strong commitment to state sovereignty in stance (2) puts them at odds with today's international law that recognizes the legitimacy of sometimes protecting human rights by militarily interfering with the sovereignty of a government who has not attacked or threatened to attack another nation state.

That many radical libertarians today simultaneously hold all four of these views is an artifact of the particular evolution of American libertarian thought over the past sixty years, coupled with an undeveloped and inadequate theory of legitimacy. I address the issue of legitimacy in Part I of Restoring the Lost Constitution (you can read a free version of the argument here), which some have mistaken as a repudiation, rather than a refinement, of radical libertarianism, a misunderstanding that stems from many radical libertarians' failure to appreciate the inadequacy of their conception of legitimacy (but this is beyond the scope of this blog post).

THE PROBLEM(S): While each of these stances, standing alone, is coherent, I have trouble understanding how radical libertarians can coherently hold all four positions. In particular, as already noted, stance (1) seems to be in severe tension with stance (2). How can ALL governments be fundamentally and EQUALLY illegitimate (when assessing the propriety of the U.S. government) but all (foreign) governments--no matter what their form or conduct--must be treated AS A MATTER OF PRINCIPLE (as opposed to prudence) as sovereign owners of their territories whose jurisdictions over "their" people are absolutely inviolable unless they attack the territory controlled by another sovereign government?

There is also seems to be some tension between stance (2), according absolute sovereignty to government rulers of whatever stripe, and stance (4) affirming the fundamental human rights of all persons. This tension only increases when we consider these sovereign governments are wholly illegitimate according to stance (1), but they still cannot be stopped from violating fundamental rights (stance 4) within their sovereign territory by other equally illegitimate but also sovereign governments.

Are these foreign governments illegitimate for some purposes or in some contexts and legitimate in others? If so, what is the source of the latter legitimacy that seems inconsistent with stance (1)? And why then might not the U.S. government be legitimate in some respects while being illegitimate in others? To be clear, I am not asserting any answer to these questions. I am only noting that combining stances (1) and (2) seems to require a more nuanced or complicated view of legitimacy than either stances (1) or (2) standing alone. Any such distinction would greatly complicate many radical libertarians' implicit theory of legitimacy according to which all governments are EQUALLY illegitimate.

Moreover, I don't see how radical libertarians can accept stance (3) rejecting entirely the legitimacy of the U.N. and at the same time criticize the action of the U.S. government as "illegal" because it lacks U.N. authorization, or even that it affirmatively violates U.N. resolutions. While I doubt that this sort of criticism is often made by radical libertarians, it is worth noting that they cannot rely on a purely positivist conception of international law to assess the "legality" of U.S. foreign policy because international law today DOES recognize the U.N. and current international law also sometimes views as legitimate military interference with sovereign states to protect fundamental human rights against, for example, genocide. To the extent they want to make claims about the "illegality" of the conduct of the U.S. government, therefore, radical libertarians need to make a NORMATIVE argument on behalf of an PURE Westphalian theory of sovereignty that is no longer recognized by international law, if it ever was. And this is an odd stance for a radical libertarian.

Can a radical libertarian argue that the U.S. government exceeds its powers under the Constitution when it uses its military aggressively? I don't see how without implicitly conceding some DEGREE of legitimacy to the Constitution. Not only would this violate stance (1) by which all government are equally illegitimate, but many radical libertarians are quite hostile to the Constitution, preferring the Articles of Confederation. But would not that mean legitimating the governments of the separate states in violation of stance (1) in which all government are equally illegitimate? How did state governments get to be legitimate governments according to a radical libertarian?

There is one obvious rejoinder a radical libertarian could make to reconcile logically all four of these positions. If ALL wars waged by states are inherently unjust because states are inherently illegitimate and the rights of innocents are always violated by state wars (stance 1) then, a fortiori, an aggressive war by one state against another must also be unjust (stance 2). In essence, stance 2 is simply collapsed into stance 1 as a special case. Because all wars by states are unjust, this includes aggressive wars against sovereign states.

But this rejoinder won't work for most radical libertarians because it proves too much. Stance (1) would oppose ALL wars INCLUDING WARS OF SELF-DEFENSE which stance (2) and most radical libertarians purport to allow. Now I realize that some fraction of radical libertarians, whose opinion I respect, believe that there is no such thing as a just war, but most radical libertarians (including most critics of my WSJ op-ed) allow the legitimacy of a defensive war and oppose only wars of aggression. Some antiwar libertarians who oppose the Iraq war as aggression, for example, supported the war in Afghanistan on "self-defense" grounds. And those who didn't say they would support a war that was truly in self-defense. They simply deny that the war in Iraq fits that description. Yet if they also accept stance (1), as they appear to, then ON THEIR ACCOUNT because a defensive war is waged by an illegitimate government and the rights of innocents were inevitably violated, it too must be opposed.

What if radical libertarians tried to salvage the legitimacy of a just defensive war (and the U.S. Constitution too?), by jettisoning or softening stance (1)? We would then be back to arguing whether a particular war is legitimately an act self-defense, even if it will harm the innocent and even if it is waged by a government. (More on this below.) And to salvage the Constitution the radical libertarian might have to acknowledge that, while all governments may be UNJUST to the extent that they confiscate their income by force and put their competitors out of business by force, some governments are nevertheless more LEGITIMATE than others, and a particular ACTION by a government could be JUST even if the government (qua government) that performs the just action is not. But all this is going to greatly complicate any blanket condemnation of wars waged by governments who may be legitimate to a greater or lesser degree, and some illegitimate altogether and deserving (in principle) of no respect whatsoever, even from other governments.

Perhaps most obviously, it is not clear how radical libertarians can be committed to stance (2) and continue to claim they are radical. Given the nature of government, radical libertarians should be wary of the reification of states as though they were individuals entailed by stance (2). Once stance (2) affirming the sovereignty of states is relaxed or jettisoned altogether, however, analysis of national "self defense" becomes far fuzzier than when we speak of individual self-defense, if for no other reason that persons residing in other "nations" have fundamental human rights that may be violated by those who govern the territory. These innocent persons may justly call upon others to assist them in protecting their rights, and welcome this assistance even at some risks to themselves, and even if it comes from a rival government.

Because of radical libertarians commitment to human rights (stance 4), and their skepticism of the legitimacy of any government (some version of stance 1), any such discussion of self defense should be cautious about relying too heavily on the fine points of a purified version Westphalian international law — or about assessing governments by the specific doctrines that have arisen in civil societies to assess personal defense of self and others. Perhaps these concepts transfer over perfectly, but that cannot be assumed. And they should also avoid any reference to the United Nations (see stance 3) and take into account the human rights (stance 4) of foreigners who are oppressed by "their" governments.

Any such discussion among principled libertarians would be pragmatic, based on an assessment of those policies that tend to advance liberty versus those that tend to retard it (and some antiwar blogger response to my op-ed take exactly this approach), and one's opinion will vary greatly with one's beliefs about the facts of a particular situation, as well as the respective natures of the governments involved. And it can also be principled.

But any such discussion will unavoidably be VERY complex. I cannot even begin it here. I can only raise a few simple questions about the coherence of radical libertarians' antiwar stances. Indeed, this overly long blog post only begins to examine the complexity of libertarianism and war, a HIGHLY under-theorized topic, that merits the attention of radical and moderate libertarians alike.

But for those poor dedicated readers who have gotten this far, perhaps this post will make it easier to appreciate just WHY even radical libertarians can AND DO disagree about the war in Iraq. And maybe also that at least some antiwar libertarians have not completely reconciled their antiwar stances with their libertarianism. Speaking for myself, I know I do not have a fully developed theory of libertarianism and war.
anonVCfan:
In your op-ed, you write this:

First and foremost, libertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime. They hold that these rights define true "liberty" and provide the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.


Yet, in your post, you state that you've gotten substantive arguments in response "largely from radical (or anarchist) libertarians."

Is the term libertarian so broad that it includes anarchists? If so, does it have any meaning at all?
7.20.2007 3:54am
Anonymous Chicken:
Its interesting you call your op-ed, Libertarians and the War, when some libertarians would argue, "what war?" at least in a constitutional sense... I'm a libertarian and I believe in a strong national defense. Heck I even believe in fighting a war when needed to protect our nation from threats foreign and domestic. But like most libertarians like Ron Paul, I also strongly believe in following the US Constitution. I know, its a novel concept, but I suggest that before we go to war we actually follow the Constitution and have a formal declaration of war. If the President wants to take some kind of defensive action to stop an imminent threat, thats fine. But if we are going to wage a "war," something that is going to last longer than World War II, and cost billions of taxpayer dollars, then lets only do such a thing after a formal declaration of war. Yes, the Constitution "is not a suicide pact," but in my opinion, our country needs to set a higher bar before we get entangled in long, drawn out foreign conflicts like this. That higher bar is already in the Constitution -- and its reserving to Congress the power to declare war in Article 1. And no, a AUMF isn't good enough, at least not in my opinion in a Constitutional sense. Lets make going to war mean something again. I think it would do our country a great deal of good and avoid these horribly thought out and ill planned foreign entanglements. I'm more responsive to giving the president strong commander-in-chief powers, and curtailing some civil liberties in the name of security, but only if we declare war in a Constitutional sense and make that bar high. Make the bar high enough, that Congress actually is forced to think long and hard about the consequences of their actions before they hand over such power to the executive. So you might want to rename your op-ed, as I am not ANTI-War. I'm Anti-Undeclared-poorly-planed-military-police-action.
7.20.2007 5:28am
orson23 (mail):
Anonymous Chiken avers

But like most libertarians like Ron Paul, I also strongly believe in following the US Constitution.

Indeed, movement Libertarians are, by definition, Constitutional Fundamentalists because they believe that every word and phrase ought to be adhered to literally. Other libertarians do not face this simplification and its practical challenges, but instead face others - usually not those involving national defense.

Unfortunately, the Framers words give us little guidance as to how such a hamstrung and restricted presidency could function. President Jefferson, for instance, was notorious for his expansive opportunism in his role as Commander-in-Chief. Yet I've never heard Libertarians offer a Constitutional Admendment, or a set of them, that would remedy the problem more to their idealized and strict ways.

Rather, they are expert at carping about their opponents lack - or rather, not too expert at all.
7.20.2007 5:39am
Anonymous Chicken:
My only point is, Ron Paul and Guiliani's little conflict at the debate, seemed to be what spawned Mr. Barnett's op-ed, and I am just noting that Ron Paul as a libertarian is not argueing against war or the idea of waging war, as waging war is sometimes a necessity. Paul's real beef along with many other libertarians is with undeclared wars, which are ussually not very well planned and end up being political entanglements. He has been very consistent in his views (which I share with many other libertarians), that his problem with the Iraq war and with many other wars that have been fought by the United States, both foreign and domestic, is not necsarry with the concept of war itself, but how they are started. A war is sometimes necessary...Our beef is with undeclared and thus illegal wars under the US Constitution. What is odd, is that the idea that Congress should declare war which is plainly in the Constitution is now seen as somehow "radical" libertarian thinking now... It seems like common sense and what the constitution mandates, and if we would follow the constitution and the wisdom of our founding fathers, we wouldn't be getting in so many messes and costly entanglements. The Framers of our Constitution gave us plenty of guidance regarding how phrases in our Constitution were to be interpreted. Some of them wrote very extensively regarding the document they created in the summer of 1787.

As the father of our Constitution, James Madison states himself in 1793:

"Of all the enemies to public liberty war is, perhaps, the most to be
dreaded, because it comprises and develops the germ of every other. War is
the parent of armies; from these proceed debts and taxes; and armies, and
debts, and taxes are the known instruments for bringing the many under the
domination of the few. In war, too, the discretionary power of the
Executive is extended; its influence in dealing out offices, honors, and
emoluments is multiplied; and all the means of seducing the minds, are
added to those of subduing the force, of the people. . . .

The Constitution expressly and exclusively vests in the Legislature the
power of declaring a state of war . . . the power of raising armies . . .
the power of creating offices. . . .

A delegation of such powers [to the President] would have struck, not only
at the fabric of our Constitution, but at the foundation of all well
organized and well checked governments."

http://www.youtube.com/watch?v=8Hfa7vT02lA

http://www.youtube.com/watch?v=GBLYTAIt25g

http://www.youtube.com/watch?v=JAcFRIrt-3Q

http://www.youtube.com/watch?v=DGV1ZLj-noE

http://www.youtube.com/watch?v=xo6KIusCBoU
7.20.2007 6:22am
One more critic (mail):
Is the term libertarian so broad that it includes anarchists? If so, does it have any meaning at all?

Do you know anything at all about libertarianism? If so, how can you even ask that?
7.20.2007 7:20am
One more critic (mail):
Barnett's proposition (2) regarding national sovereignty are flawed. His entire argument fails as a result.

His proposition (1) should be clarified to simply say modern wars. Why just modern wars? Because of the new mass murdering technology, that simply didn't exist in prior wars. Government wars are not viewed as illegitimate simply because they are undertaken by illegitimate entities (an argument I've never heard used as a justification for being antiwar, but I'll take it as a premise for argument), but because of the causes for war, the methods for waging war, and the goals of wars.

Proposition (3) needs to have this reply only, "Authorization or the lack thereof by the UN is not material to the case against American foreign policy." The illegality of the Iraq war is not based on UN authorization (or at least it shouldn't be), but on the US Constitution.

I have a complete refutation of Barnett's above piece but honestly, what I've written so far is enough.
7.20.2007 7:31am
Stephen VanDyke (mail) (www):
1) The existence of Al Qaida and our "War on Terror" situation stems directly from our meddling in foreign affairs decades ago. This is the crux of Ron Paul's argument. Anti-meddling does not make him anti-defense (he's advocated putting our troops on our borders where they belong).

2) Regardless, the barbaric attack on 9/11 warranted our full and focused military retaliation on Al Qaida. Ron Paul agreed with this also, but hesitated at the notion of doing it without formally declaring war.

3) Beyond that, we have no business further meddling in the affairs of other countries, and the Iraq war is another fine example of the kind of shit that's going to come back to bite us in the ass in 20 years.
7.20.2007 7:47am
Mark Bahner (www):
Unfortunately, the Framers words give us little guidance as to how such a hamstrung and restricted presidency could function. President Jefferson, for instance, was notorious for his expansive opportunism in his role as Commander-in-Chief. Yet I've never heard Libertarians offer a Constitutional Admendment, or a set of them, that would remedy the problem more to their idealized and strict ways.


The Constitution already addresses presidents who don't follow the Constitution. The Constitution allows them to be impeached and removed from office. Unfortunately, that would require: 1) a majority in the House Judiciary Committee, 2) a majority in the House, and 3) a two-thirds majority in the Senate...

...to actually care whether the president follows the Constitution. That has not been the case for at least the last 100 years, and maybe has not been the case even since 1789.

P.S. In 2003, on the Free Republic website, I called for G.W. Bush's impeachment and removal from office for failing to get a Congressional declaration of war against Saddam Hussein's government (and the Taliban government). Needless to say, there wasn't much agreement with that stand on Free Republic (or "Free Republic").
7.20.2007 9:05am
Mark Bahner (www):

Is the term libertarian so broad that it includes anarchists? If so, does it have any meaning at all?



Do you know anything at all about libertarianism? If so, how can you even ask that?


Well, that's really helpful! If you are a libertarian, "One more critic," with friends like you, we really don't need enemies.

AnonVCfan, the heart of libertarianism, as stated by the Libertarian Party, is this statement (on the back of every Libertarian Party membership card):

"I hereby pledge that I do not believe in nor advocate the initiation of force or fraud as a means of achieving political or social goals."

Now, some people view that statement as even prohibiting the forcible collection of taxes. In other words, they go beyond the "minarchist" view of many libertarians (that forcible collection of taxes is acceptable, as long as the items being funded are restricted to such fundamental governmental requirements as national defense).

One of the most well-spoken of the so-called "anarcho-capitalists" is David Friedman (son of Milton Friedman):

http://en.wikipedia.org/wiki/Anarcho-capitalism

As a libertarian, I think I would not have any problem with anarcho-capitalism. However, I also think there is essentially zero chance that any country will be anarcho-capitalist in the next 50+ years that I expect/hope to be alive.
7.20.2007 9:20am
Mark Bahner (www):

Paul's real beef along with many other libertarians is with undeclared wars, which are usually not very well planned and end up being political entanglements.


Dr. Paul's other beef (along with many other libertarians) is in having the U.S. military stationed in countries outside the U.S. For example, before the war in Iraq, we had troops in Saudi Arabia. If Ron Paul had been the president (rather than G.H.W. Bush, Bill Clinton, and G.W. Bush) we would have pulled out all our troops from Saudi Arabia.

And even if we leave Iraq, unless Ron Paul is elected president, we will almost certainly have troops in Kuwait, Turkey, South Korea, etc. (etc. etc.)
7.20.2007 9:32am
Mark Bahner (www):

2) Regardless, the barbaric attack on 9/11 warranted our full and focused military retaliation on Al Qaida.


I hope Ron Paul has never said we should be engaged militarily with "Al Qaida." Al Qaida is a criminal organization, not a government. The U.S. Constitution authorizes the U.S. government to wage war on other governments (e.g. the Taliban government in Afghanistan), not on civilians (e.g., criminal gangs like Al Qaida).
7.20.2007 9:38am
pinhead:
Randy Barnett:

words words words

Teacher, may I be excused? My brain is full.
7.20.2007 9:40am
TruePath (mail) (www):
I agree with this post in large part but I'm frustrated that it doesn't do more to point out the incoherent nature of it's opposition. I don't think the idea of a libertarian case against the war as considered here even makes sense.

There are two primary cases. Either the libertarian case against the war is ultimately claiming that things everyone (non-libertarians included) would recognize are bad follow from the war. In this case it's simply a question of estimated consequences and your case won't be stronger for libertarians than it should be for anyone else.

Alternatively you take libertarianism to mean the acceptance of some other fundamental moral code, e.g., you adopt the principle that it is always unacceptable to violate certain sorts of rights. If so fine but it doesn't make sense to argue about what libertarianism requires without making this code explicit which is never done.

Accepting things like the Westphallian view of the state and arguing from there don't make any sense. If you have a justification for why this is good in general dust it off and apply it to this particular situation. If you don't then this isn't an argument.

It isn't valid in political debate to just pick some principle that sounds like it might entail what you want and then just argue from that principle unless you are truly willing to accept it as fundamental which almost no one ever is.
7.20.2007 9:42am
Mark Bahner (www):

But if they watched the Republican presidential debate on May 15, many Americans might resist the libertarian label, because they now identify it with strident opposition to the war in Iraq, and perhaps even to the war against Islamic jihadists.


Randy Barnett: Of all people, surely YOU know it is not possible, under the Constitution, for there to be a "war against Islamic jihadists"?!
7.20.2007 9:44am
Justin (mail):
Without getting to the merits (I'm still unsure if you're even playing a fair game, since you seem to be moving the goalposts around quite a bit, from the Iraq war, to wars of aggression, to wars generally, and back), let me point out this is not proof:

"My sole aim in my op-ed was to inform readers that they should not assume that Ron Paul speaks for all libertarians because it is an undeniable fact that he does not. I have the emails and blog posts to prove it empirically!"

All you have is proof that people who call themselves liberterian support this war. But it doesn't mean they are supporting it on liberterian grounds, or even that they are liberterians. They could range from liberterians who are also gigantic racists and bigots (hopefully very few of those), to liberterians who are not really so but just "wanna be cool" Republicans (or who are anti-social-conservative Republicans), to people who are liberterians but also have competing ideas.

I don't think if you polled 500 random self-identified liberterians on the question "Would yo be okay if the government gave (just) you a brand new mercedes" and people answered it honestly, tha you would get no positive replies. Does that mean the government giving people Mercedes's is compatible with liberterianism? So your "empirical" support (especcially when its not that, since you aren't comparing your "support" to the amount of liberterians overall) is not that at all, and you're going to have to resort to proving it the old fashioned way.
7.20.2007 10:04am
Sameer Parekh (mail) (www):
My view of the war in Iraq's legality is more a question of "contract law." Simply put, we signed a contract with Iraq in 1991 after they invaded Kuwait. They violated that contract. Thus our invasion was legal. qed.

Of course that does open up the question of whether or not expelling Iraq from Kuwait was legal. In that case going to the constitutional declaration issue would be appropriate.
7.20.2007 10:06am
David M. Nieporent (www):
And no, a AUMF isn't good enough, at least not in my opinion in a Constitutional sense.
Anonymous: can you identify a distinction between an AUMF and a declaration of war "in a Constitutional sense"?
7.20.2007 10:22am
David M. Nieporent (www):
The U.S. Constitution authorizes the U.S. government to wage war on other governments (e.g. the Taliban government in Afghanistan), not on civilians (e.g., criminal gangs like Al Qaida).
...and...
Of all people, surely YOU know it is not possible, under the Constitution, for there to be a "war against Islamic jihadists"?!
I note that you're still confidently pronouncing statements without any basis in fact on this subject. Where exactly in the Constitution does it state anything about "other governments"? Surely YOU know that nowhere in the Constitution does it state anything like what you said.
7.20.2007 10:34am
Xanthippas (mail) (www):
Since I'm not a libertarian I can't really offer any kind of rebuttal or criticism of modes of libertarian thought on war. As I do say on my own blog however, many of the arguments you say were cited in support of the war by libertarians are frankly indistinguishable to me from the arguments put forth by neo-cons and liberal hawks. That seems to undermine for me the rationale that there's some sort of "libertarian" interventionist rationale, though it's possible I'm not distinguishing the arguments effectively.
7.20.2007 10:42am
Bruce Hayden (mail) (www):
What seems to be skipped over here is the interaction between the four facets. If there are fundamental human rights, then #2 lacks force, and arguably #4 almost forced us into Iraq.

I would suggest that governments ultimately rely on the free consent of the governed for their legitimacy. And, thus, the more freely the consent is given, the more legitimate their government, and the more we should respect their sovereignty.

Needless to say, this means that the legitimacy of the governments around the world varies from fairly legitimate to wholly illegitimate. The problem with Iraq was that it was violating all the norms, including here: not being based on free consent, but rather on brutal suppression; routine gross violations of the most basic human rights of its peoples; and repeated armed attacks against its neighbors, most of whose governments had at least some more legitimacy based on the criterium of freely given consent (even Iran conducts elections, that are arguably far more democratic than Saddam ever allowed). It is from that point of view, that Iraq stuck out even in the class of gross violators of the human rights of their citizens. As an example, Robert Mugabe is probably as bad, if not worse, with his own subjects, than was Saddam Hussein. But he isn't attacking his neighbors, nor trying to develop WMD to make that more effective, and thus intervention in Zimbabwe would be arguably less justified than was ours in Iraq.

The government of Iraq under Saddam Hussein lacked legitimacy since consent was not freely given. And it forfeited any claim to sovereign rights by attempting to deny such to other countries, notably Iran, Kuwait, and possibly Saudi Arabia and Israel. It then went on to grossly violate the basic human rights of its peoples, including the first named one of our Declaration of Independence, that of Life.

So, in a simplistic way, what have we done since our intervention in Iraq? Implemented a mechanisms to provide for more freely given consent of the governed (i.e. democracy), and attempted to protect the citizens of that country from those who would attempt to resubject them through even more violence from that violence. Remember, who is setting off all those bombs going off killing innocent civilians, and also the police, etc. - it is almost entirely the small minority of the population from which Saddam Hussain came, using mostly foreign volunteers as the suicide bombers. In short order, a continuation of the regime of terror under Saddam against a large majority of the Iraqi people by a privileged, but very brutal, minority.

Maybe that is why I am probably not a good libertarian. I see a justification, if not need, for offensive wars against tyranny. Besides, even when we can claim defense, as we could in WWII, our hands are usually not that clean - many have argued that our attempts to cut Japan off from, in particular, oil, is what precipitated Pearl Harbor, and thus our entry into that war.
7.20.2007 10:52am
Justin (mail):
David,

I'll assume the obvious answer would involve the question of whether the power to declare war is delegable to the executive branch.
7.20.2007 11:18am
Thorley Winston (mail) (www):
The U.S. Constitution authorizes the U.S. government to wage war on other governments (e.g. the Taliban government in Afghanistan), not on civilians (e.g., criminal gangs like Al Qaida).


Really now, my copy of the Constitution doesn't seem to have a "on other governments but not on civilians" clause in it. Perhaps you can point us to it.
7.20.2007 12:51pm
William Spieler (mail) (www):
I've never been too fond of the idea that a libertarian government necessarily has separation of powers. An unjust war is an unjust war, no matter which branch declares it. Separation of powers may make libertarian outcomes more likely, but I don't think that separation of powers is a necessity for conformity to libertarian principles.
7.20.2007 12:53pm
markm (mail):

Alternatively you take libertarianism to mean the acceptance of some other fundamental moral code, e.g., you adopt the principle that it is always unacceptable to violate certain sorts of rights. If so fine but it doesn't make sense to argue about what libertarianism requires without making this code explicit which is never done.

Libertarianism definitely has a fundamental moral code. If libertarians don't talk about it much, it's because it's simple and obvious to anyone who was raised to respect others rights and property: Don't hurt others or take their property by force or fraud. Keep your promises. (This means honoring your contracts.) Be responsible for yourself. Defend yourself against those that hurt you in violation of these principles, and join together with others in such defense when necessary.

The problem arises when you try to apply that to relations between nations - because our code doesn't say much about making deals with criminals, and most nations often act criminally by our principles.
7.20.2007 1:05pm
Thorley Winston (mail) (www):
Anonymous: can you identify a distinction between an AUMF and a declaration of war "in a Constitutional sense"?


Indeed, I'd be curious if the poster can show us where the Constitution establishes the particular form that a declaration of war must take or even where it says that the President's authority to deploy troops requires that there even be a formal declaration of war (tell it to the Apache). There's nothing "unconstitutional" about a war authorized by Congress whose authorization didn't include the words "declaration of war" nor is there even anything unconstitutional about an undeclared war.
7.20.2007 1:07pm
NickM (mail) (www):
There is another libertarian theory against nondefensive wars against tyrannies: That while individuals may, consistent with libertarian principles, engage in force to defend the rights of third parties, government may not do so, because the resources used to do so would be forcibly taken from that government's own people whether or not they approved of the war. At least some who hold this view would readily grant letters of marque and reprisal in such situations.

Nick
7.20.2007 1:50pm
peter jackson (mail) (www):

That higher bar is already in the Constitution -- and its reserving to Congress the power to declare war in Article 1. And no, a AUMF isn't good enough, at least not in my opinion in a Constitutional sense. Lets make going to war mean something again.


So many people hold this view (as I once did) that it startles me, especially on a law website, that more people aren't familiar with Doe v. Bush, where this exact question was brought before the First Circuit Court of Appeals which ruled, citing a string of precedents, that the AUMF resolutions passed by Congress ARE constitutional declarations of war. Long story short, if it walks like a declaration of war and quacks like a declaration of war, then it's a declaration of war, even if it doesn't contain the magic words "we declare war" in the text.

yours/
peter.
7.20.2007 3:41pm
M. Simon (mail) (www):
I'm not sure I get the "undeclared war" bit.

Did Congress vote the money? Did they authorize the President to use the troops? All that is required to end this war is to cut off its funding. Why isn't that happening?

An "official" declaration of war would allow the President to jail his political enemies for sedition.

I like "undeclared" wars better. They are harder to fight in every way, however I believe dissent is good.

BTW WWIII - the Cold War - was undeclared. Did that mean we did not fight it for 40 years?
7.20.2007 3:53pm
Anonymous Chicken:
The Authorization for Use of Military Force (AUMF) permitted President Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This is not a declaration of war, this is Congress handing over its power to the President. In my opinion, Congress can't just sign over this power to the President. Even if one reads "all necessary and appropriate force" as a grant of war, the AUMF allows the president to decide who to go to war with, which is the same as declaring war. That's not allowed, any more than Congress could pass a law allowing the president to pass laws. Constitutionally, Congress cannot turn the president into a monarch, even if it wanted to. Your right, that the Constitution doesn't tell us what a formal declaration of war should look like, but I'm willing to bet you that most members of Congress didn't consider the AUMF as a formal declaration of war. One of the problems is that the Supreme Court has always avoided questions of war powers, and this failure to clarify these powers has continued to cause enormous problems for our nation.
7.20.2007 4:08pm
Jam:
What to declarations of war look like?

Declarations of a State of War with Japan, Germany, and Italy

I highly recommend the Avalon Project website. It is a great resource for historical documents. No home should be without a bookmark to this site.

The Avalon Project at Yale Law School : Documents in Law, History and Diplomacy
7.20.2007 4:59pm
M. Simon (mail) (www):
If we were at war with Germany why did we attack France in 1944?

I can only conclude that America has no respect for sovereign nations.
7.20.2007 5:17pm
M. Simon (mail) (www):
AC 308PM,

What ever resources (including judgment) Congress put in the President's hands with respect to our jihadi (a term from the American Colonial period) enemies can be rescinded if the Congress sees fit. In fact some Dems are trying to do just that.

This is not a usurpation of power. It is delegating to the executive the implimentation of the wishes of Congress. Just as the executive enforces laws Congress passes. That is the traditional role of the executive. Don't Libertarians have any respect for tradition?

Sometimes I think reality makes Libertarians crazy.
7.20.2007 5:25pm
Thorley Winston (mail) (www):
The Authorization for Use of Military Force (AUMF) permitted President Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This is not a declaration of war, this is Congress handing over its power to the President. In my opinion, Congress can't just sign over this power to the President.


Okay just so we're all clear, you're on record as being against our going into Afghanistan because the argument you're making has nothing to do with the language in the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.
7.20.2007 5:36pm
John Elliott (mail):
I think few people recognize the differences within the libertarian movement (as the saying goes, I am little l libertarian not big L anymore, as the Libertarian party is a joke). At one point I had hopes that the Neo-Libertarian movement might garner more support but the newsletter "The New Libertarian" (TNL) never made it past the first issue. However the Neo-Libertarian blogosphere (http://www.neolibertarian.net/blogs/) does exist and many of them support these views. As stated in the one, and only, issue of TNL "At the same time, the uncertainties of war make it incumbent upon the United States to prosecute it vigorously should it become necessary".

While we may argue over whether the case for war was true when presented, Congress and the American people agreed at the time that war with Iraq was justified. As such we need to deal with the results, and retreat (no matter if you call it pull-back or what, retreat is what it is) is not the answer. None of those calling for us to pullout of Iraq have provided a reasonable plan or in many cases any plan at all to leave a stable Iraq after we pullout.

We need to quit trying to get agreement about which is the "true" libertarian view and deal with reality.
7.20.2007 5:51pm
Jam:
M. Simon:
The usurpation of powers is from both POTUS and Congress because:
1) Congress has express authority to delegate declaration of wars.
2) the POTUS has no express authority to declare war.

When Congress declares war, POTUS executes until:
1) the war concludes and Congress ends the war.
2) the Congress declares the end and POTUS acts accordingly.
3) the COngress delares the end, the POTUS does not act accordingly and Congress impeaches.
7.20.2007 5:52pm
Jam:
It still looks like Congress did not declare war on Iraq.

It looks like it was the UN who got the benefit from the war making delegation of powers.


Excerpt from the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.
-----------------

SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS

The Congress of the United States supports the efforts by the President to--

(a) strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq and encourages him in those efforts; and

(b) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to


(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
7.20.2007 5:57pm
Jam:
Argggh

1) Congress has NO express authority to delegate declaration of wars.
7.20.2007 6:00pm
Anonymous Chicken:
I'm on record saying that any "war," without a formal declaration of war by the Congress is unconstitutional. Now, one can argue and debate about what is a "war" compared to a Defensive action aimed at stopping an imminent threat, or other short term preemptive or military operation (say, Panama for example) But Iraq is certainly a "war" by now if you look at the numbers of troops deployed and dollars spent. Afghanistan is probably a war now as well. Both are military actions that have lasted years. Its amazing to me, that you say that I'm going on record as being against our going into Afghanistan? Absolutely not! In my opinion we should of gone into Afghanistan. I support our battle in Afghanistan. But we should of done it with a formal declaration of war, not the AUMF. I'm not against war, and I'm not against killing our capturing our enemies no matter where they are, I'm against illegal wars under the Constitution. Illegal wars are done by illegally delegating powers and passing joint resolutions.
7.20.2007 6:02pm
Thorley Winston (mail) (www):


I think few people recognize the differences within the libertarian movement (as the saying goes, I am little l libertarian not big L anymore, as the Libertarian party is a joke).


I think it's a joke to pretend that there is such a thing as a "Libertarian Party" in any meaningful sense. It's basically an outlet for people who wish to pretend to be involved in politics without risking the danger that they might have to actually accomplish something.

Sort of like the Greens in Germany before they formed a coalition with Schroeder's party and once in power then realized that they had to make a choice between their commitment to their high-minded principles of "nonviolence" and letting Milosevic rape and butcher thousands of innocent men, women, and children on their doorstep.
7.20.2007 6:03pm
Thorley Winston (mail) (www):
1) Congress has NO express authority to delegate declaration of wars.


The answers to that is (a) Congress hasn't delegated a declaration of war, it allowed the President to pick the targets (just like it allowed FDR to invade France to get to Germany) (b) nothing in the Constitution requires a declaration of war in order to deploy troops and (c) much as you might like to believe otherwise, each branch of government enjoys implied powers that enable it to carry out its enumerated powers.
7.20.2007 6:13pm
Thorley Winston (mail) (www):
I'm on record saying that any "war," without a formal declaration of war by the Congress is unconstitutional.


And you have nothing to back that up.
7.20.2007 6:14pm
Anonymous Chicken:
Winston:

We had a formal declaration of war during WWII against Germany, Italy and Japan. Of course the President could order troops to fight the Germans in France. The Germans had taken over France. We didn't go to war against France, we went to war to liberate the French territory that was occupied by Germany. Congress didn't delegate any declaration authority in World War II.

Nobody is arguing that the Constitution requires a declaration of war to deploy troops. During the Constitutional Convention of 1787 it was suggested that Congress be given the power to "make" war. Instead, the founders decided to make the language "declare" war intentionally to give some wiggle room for the President of the United States to repel imminent attacks, or to fight military conflicts of a short duration in which going to Congress for a formal declaration would be impossible or difficult. I think most libertarians agree that there are many instances when US troops need to act quickly without a formal declaration. When Japan was bombing Pearl Harbor the military didn't phone home to Congress to ask permission to shoot back and nobody expects them too. And if on 911 the president gave the order to shoot down one of the planes I don't think anyone, even the most radical libertarian would of argued that the president would of had to go to congress for a war declaration to get permission to order such military action. That is just common sense. That is just reality. But is Iraq now or ever one of those situations? No. In my opinion Iraq is a war now. And it is undeclared. And undeclared wars are unconstitutional.
7.20.2007 6:31pm
orson23 (mail):
Anonymous Chicken (among others) have unintentiionally reiterated my point about Libertarians as Constitutional Fundamentalists: its "Congress shall have the power to declare war" provision is really read as "shall only," or "Only Congress shall..."

All this is very good, but it is not yet in the Contsitution!

So, therefore, where are the Libertarian proposals to clarify the murky waters of certain, arguably abused, provisions of this august document...?

I'm still waiting...!
7.20.2007 6:33pm
Anonymous Chicken:
Winston:

The Constitution of the United States backs me up. James Madison backs me up. (see above) What is your argument, that the framers gave Congress the power to declare war, but yet, they really didn't mean it? Or that the power to declare war is just some meaningless power that enables Congress the ability to label military conflicts that the President can start unilaterally as "wars" or "not wars." Give me a break.
7.20.2007 6:38pm
M. Simon (mail) (www):
Jam,

As I understand it what Congress did was to allow the President the option of when and where to initiate hostilities. Which is in fact a traditional Presidential prerogative.

Now maybe the President took it the wrong way (I don't think so). All Congress has to do is cut off the funds. Why don't they?
7.20.2007 6:42pm
whit:
"My view of the war in Iraq's legality is more a question of "contract law." Simply put, we signed a contract with Iraq in 1991 after they invaded Kuwait. They violated that contract. Thus our invasion was legal. qed. "

thank you for making this point. it is frequently glossed over. people seem to forget gulf war I. the whole reason we had so many restrictions on iraq was because of the results of gulf war I. specifically, we won. we got to set the conditions. Iraq (and SH) were in the position, much like a parolee in many states of having been found guilty and having "conditions of release". much like a parolee can be sent back to the slammer without the same protections that a normal civilian has (and that he has a lesser expectation of privacy since he is still technically in prison - sort of). we stopped gulf war I contingent upon him signing this contract.

there is no doubt whatsoever that he violated that contract - repeatedly.

in this sense, iraq war part deux was really a reinitiation of the first iraq war due to his failure to abide by the ceasefire that he signed and agreed to abide by.

also, this would make afghanistan invasion arguably "less justified" than the iraq one even though many see the former as clearly more justified.

this says nothing about whether it was good policy to invade iraq and occupy it. but SH signed the darn ceasefire.
7.20.2007 7:05pm
Anonymous Chicken:
I will also note that the first Gulf War was also illegal because it was "undeclared," and thus unconstitutional, at least in my view. Reasonable minds can and do differ on the subject of war powers. I wish the Supreme Court during the Vietnam era would of addressed some of these issues head on instead of tip-toed around them.
7.20.2007 7:15pm
Jam:

All Congress has to do is cut off the funds. Why don't they?


Because they are gutless. Same reason they do not use impeachment. Every modern POTUS knows that once the "life of our soldiers" are dangling out there, and "patriotism" is appealed to and fearsome proclamations warning that our safety is imperiled, the short-memory sheeple fall in line.

Unless the POTUS is leader through war he can never even compete to be great. Same for congess-critters, especially if they belong to the same party as the war's Commander-in-Chief.

============================

Indeed, Guld War 1 was also unconstitutional and illegal.
7.20.2007 7:46pm
wrffr:
Anonymous Chicken: In my opinion Iraq is a war now. And it is undeclared. And undeclared wars are unconstitutional.As someone already pointed out, DOE v. BUSH ruled that it was fully constitutional and cited quite a bit of precedent backing that up.
7.20.2007 8:17pm
M. Simon (mail) (www):
Jam 646PM,

Who are the Congress critters afraid of?
7.20.2007 8:26pm
M. Simon (mail) (www):
Jam,

I'm one of the very long memory sheeple.

I remember the Rhineland Incident of 1936 and I wasn't even born yet. Fortunately at that time the peacemongers had their way and avoided a war.

==

One very astute observer noted that it might be better for America to sustain a few more major attacks before committing itself militarily in order to get the popular backing for a large scale adventure in the ME.

Or as Churchill once said, "America always does the right thing, after she has tried everything else." Bush's fault was to be premature.
7.20.2007 8:38pm
Anonymous Chicken:
wrffr:

As far as I understand from what others have posted, DOE v. Bush is a first circuit court of appeals decision. While I haven't taken the time to read the decision, if it found that an undeclared war is constitutional (or that some resolution made it declared) then I respectfully disagree with the first circuit court of appeals. The first circuit court of appeals has jurisdiction over the first circuit. So I'll grant you that the Iraq war, may indeed be constitutional in the first circuit, and their opinion could possibly be persuasive to the United States Supreme Court if they ever address the question head on. But I do not consider one circuit court decision as the definitive answer regarding the constitutionality of the Iraq war. I'm sure I could cite at least 30 or more Ninth Circuit court of appeals decisions on areas of constitutional law that a right wing conservative might disagree with. Does the fact that the Ninth Circuit decided a constitutional issue one way somehow make it now Constitutional? Well, maybe in the Ninth Circuit, but realistically.. No... the Ninth Circuit decision on something, just like the first circuits decision on something, only applies to the circuit in which they have jurisdiction. Remember, the Ninth Circuit also held for a while that the pledge of allegence was unconstitutional. Does that mean that the pledge is unconstitutional? No... While many courts have concurrent jurisdiction with the Supreme Court, only the Supreme Court decides once and for all under its power of judicial review what is "fully constitutional" and "fully unconstitutional" under the law. As for the pledge, the Supreme court never got to the merits of the pledge on constitutional grounds (but reversed/remanded on juris grounds), and they have never, as far as I know, directly addressed whether the Iraq war is constitutional. So in my opinion, while Doe is persuasive its not the authorative definitive answer on the Constitutional question I pose... and is only authoratative precedent in the circuit where the court has jurisdiction.
7.20.2007 8:45pm
atr (mail):
Some thoughts (from a "radical libertarian"):

1. Without being nit-picky, it seems that your critique of the "radical libertarian" position on the Iraq War falls apart if you remove proposition #2. I do not accept this proposition. The thugs who were governing Iraq were not entitled to sovereignty any more than any other non-consensual thugs.

2. Thus, I agree with NickM (above) that individuals may, consistent with libertarianism, have applied force to stop the Iraqi government's aggression against the Iraqi people.

3. I also agree with NickM that governments may not, consistent with libertarianism, take the same action. In this case, whatever joy can come from the liberation of Iraqis from their government is sharply tempered by the coerced extraction of hundreds of billions of dollars to pay for the endeavor.

4. Any joy is also, of course, tempered by the deaths of tens if not hundreds of thousands of innocent people, as well as the destruction of vast amounts of property. This issue is the most unsettling of your WSJ piece, and I would guess the root of many personal attacks against you. How can a government action, funded by billions of stolen dollars, causing the deaths of thousands of innocents and the destruction of vast amounts of property, be reconciled with libertarianism?

5. John Elliott writes: "While we may argue over whether the case for war was true when presented, Congress and the American people agreed at the time that war with Iraq was justified."

I am an American person and I did not agree. From a libertarian perspective, why don't the flaws that undercut the war's beginning apply anymore?

Bruce Hayden writes: "I see a justification, if not need, for offensive wars against tyranny."

This is the problem with collectivism and government. If you see a need, government enables you to force other people to fulfill it. I would argue that the defining feature of a libertarian is unwillingness to exploit government power even to accomplish things that appear unquestionably good. And in the case of the Iraq War, of quite debatable value when it was started (and probably of even more dubious value now), a libertarian should easily be able to refrain from using government force to pursue it, even if he thought it was a worthwhile endeavor.

6. The contract theory of the invasion does not support violating the rights of innocents in Iraq (or America). The invasion was in part premised on a LACK of legitimacy of the Iraqi government, so to turn it around and now argue that the Hussein regime's consent to certain conditions following the Gulf War was binding on the people (or even "nation") of Iraq is problematic, to say the least.

Libertarians (and just about everyone else) recognize that you cannot legitimately contract away a right you do not possess in the first place.

7. One other point. Although Ron Paul may qualify as a "radical libertarian," he took an oath:
"I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

I am just speculating, but this may help to explain his focus on constitutionality when deep down inside he may not believe constitutional arguments are morally controlling. Even recently, he indicated he would have opposed the Constitution at the time it was adopted in favor of the Articles of Confederation.
7.20.2007 9:09pm
Anonymous Chicken:
Also, in DOE v. Bush, which I just quickly researched on Google, when the District Court ruled against the Plaintiffs, and they appealed to the First Circuit Court of Appeals, an amicus brief on behalf of the Plaintiff's was filed by seventy-four "concerned" law professors. If Doe was such an easy constitutional question then why did 74 law professors put their reputations on the line arguing my view of the "declaration" clause. I know there are a lot of law professors out there, some with views about the law that are not that mainstream, but if 74 law professors and a presidential candidate agree with this view of the Constitution then I'm not exactly out in left field on this one. Thats my opinion, but reasonable minds can differ.
7.20.2007 9:11pm
josil (mail):
As a sidebar to the basic issue, I'd like to cite my experience in addressing questions of war and immigration in Libertarian publications; namely the refusal of Libertarian editors to entertain the possibility of Libertarian "Hawks" and accept counter arguments to "pure" Libertarian views.
7.20.2007 10:05pm
atr (mail):
the refusal of Libertarian editors to entertain the possibility of Libertarian "Hawks" and accept counter arguments to "pure" Libertarian views.

Let's be clear that you're describing two very different issues. It is one thing to argue that the Iraq War is good policy, or that pure libertarian views on state-waged war are imprudent, but quite another to argue that the Iraq War is consistent with libertarianism.
7.20.2007 11:08pm
SenatorX (mail):
What a great post. Saved to read again later too.
7.20.2007 11:46pm
peter jackson (mail) (www):

I know there are a lot of law professors out there, some with views about the law that are not that mainstream, but if 74 law professors and a presidential candidate agree with this view of the Constitution then I'm not exactly out in left field on this one.


When that Presidential candidate is Dennis Kucinich, joined by JESSE JACKSON, JR., SHEILA JACKSON LEE, JIM MCDERMOTT, etc., the middle of left field is EXACTLY where you are.

Look, As I mentioned in my first comment, I used to be hung up on the same tacit premise, the idea that there was a functional or legal difference between
these congressional authorizations to use military force and the other historical congressional authorizations to use force which contain the phrase "declare war." The First Circuit ruled the way they did based on the fact that there is no such difference: declaring war is as declaring war does. When you jettison this false premise, you realize nothing is really different. The administration is behaving, the military is behaving and the Congress is behaving now exactly the same way they would if those words did appear in the document. There is no harm. There is no foul.

Relax.

Whit!

thank you for making this point. it is frequently glossed over. people seem to forget gulf war I. the whole reason we had so many restrictions on iraq was because of the results of gulf war I. specifically, we won. we got to set the conditions. Iraq (and SH) were in the position, much like a parolee in many states of having been found guilty and having "conditions of release".


And what we should of learned from this is that war is not criminal law process where it is prudent to "release" the enemy. If there is one thing that all of us—libertarian and non-libertarian, pro-war in Iraq or anti-war—can agree on, it's that if we had chosen to truly defeat Saddamand removed him from power in 1991, we would not be there now. Historically, when we've settled for less than total victory, that's exactly what we've gotten.


yours/
peter.
7.21.2007 1:46am
Anonymous Chicken:
I just thought it was fun to note that Ron Paul (the "libertarian") appears to have the most contributions from military servicemen and veterans. So there is something about a humble "foreign" policy, that follows the constitution that at least one group of Americans seem to like.


http://www.youtube.com/watch?v=6nwZGRrqhfs

http://www.youtube.com/watch?v=yXbvEImWuZU
7.21.2007 1:49am
SIG357:
Most of these comments seem to be ignoring Barnetts essay. The most vocal segment here is insisting that the Iraq was is illegal because there was (they say) no "formal declaration of war".

None of the people espousing this view have offered any legal basis for it, or even suggested what a "formal declaration of war" would look like. I gather that they believe that there are certain magic words which Congress must intone. I'd like to see them expand on this rather important point, instead of rushing over it. Is a declaration of war different from an authorization to use force? How, specifically?
7.21.2007 2:18am
SIG357:
So there is something about a humble "foreign" policy, that follows the constitution

I'd be obliged if you would avoid acting as if your own unsubstantiated opinions are incontrovertible facts. You have made no arguments so far that would suggest that this war is unconstitutional.
7.21.2007 2:22am
Anonymous Chicken:
Peter:

Even if Congress doesn't outright "declare" war in the sense that they put in the title "declaration of war" or in the body "we declare war" an authorization or a resolution is not necessarily constitutionally valid as a declaration of war. For the sake of arguement I'll agree with your premise, that Congress can simply authorize the President to use force without such rigid formalities and that equates a declaration of war. However, even if this is true, I think it is plainly unconstitutional for them to authorize force such as in the AUMF and the Iraq Resolution in a way which would literally delegate the power of declaring war completely to the President. The AUMF did exactly that. The constitutionality of the War Powers Act has never been settled so my arguements I think are sound.

The fact is, throughout the 20th century, congressional control of the war power has eroded greatly, not simply as a result of executive branch aggrandizement but also because of congressional complicity. The imperial presidency continues to grow, largly because many legislators want to duck their responsiblity to decide the question of war and peace, and delegate that responsiblity to the president, and then reserve their right to criticize him if the military action goes bad, like what has happened in Iraq. I think a number of libertarians like Ron Paul are just pointing out that this ducking of responsiblity is wrong and leads to bad choices and foolish wars. Just look at the Iraq Resolution... even after Congress passed it, many Democratic Senate members to this day, to this very day claim that their vote wasn't to use force, merely, it only gave the president authority to use force. Hillary Clinton won't applogize regarding her vote to authorized the iraq resolution because in her mind she never authorized the president to go to war. Ask Hillary if she voted to declare war on Iraq and she'll say "absolutely not." Instead, Hillary and other members of Congress delegated (I think unconstitutionally) that decision of when to use force to the President. But deciding when and where and who to go to war with isn't the presidents job under the constitution. Congress declares war and the president fights it. Congress decides when to use force and it dodged that responsiblity, delegating it to the president in the case of Iraq. And the use-of-force resolution Congress passed immediately after 911 contained an even broader delegation of authority to the president, authorizing him to make war on "those nations, organizations or persons HE DETERMINES planned, authorized, committed or aided the terrorist attacks" on 911. Thats not the presidents job. Congress should be determining who to attack. That basically gives the president the power to declare war on virtually anyone at his discretion. By its plain terms these resolutions leave it to the president to decide when the evidence justifies war, and against who. Such a delegation of power is constitutionally suspect. What if the President uses the AUMF power to go to war with Iran, Syria, Lebanon or any other number of nations? Would you be singing the same tune? All I am arguing, is that Libertarians like Ron Paul are arguing loudly and clearly, that its time for Congress to reclaim the war power. Let us return to the wisdom of James Madison, who wrote:

"Those who are to CONDUCT a war cannot in the nature of things, be proper or safe judges, WHETHER A WAR OUGHT TO BE COMMENCED, CONTINUED, OR CONCLUDED. They are barred from the latter functions by a great principle in free government, analogous to that which seperates the sword from the purse, or the power of executing from the power of enacting laws."
7.21.2007 2:30am
Anonymous Chicken:
I'm sorry if my last post isn't completely clear. When I mean "use force" in the post above I mean it in the context of "use force in such a manner that it amounts to war." The President, as I have outlined in many posts above, has the power to "use force" at his discretion in many circumstances -- for the immediate defense of our nation and to stop imminent threats, ect. He even, in my view, can use limited amounts of force to pre-empt threats. But any prolonged action or large scale action (Iraq) is or becomes war. When it comes to deciding when to go to war (large scale prolonged actions), thats Congress' domain. And Congress shouldn't delegate to the president in a authorization or resolution or any other instrument the power to declare war. That is not a declaration of war, that is handing over your war power.
7.21.2007 2:47am
SIG357:
I suppose that I should not expect much from a commenter who goes by the name of "Anonymous Chicken", but I don't think your remarks live up to even minimal standards in terms of presenting a cogent and coherent argument.

Your repeated insistence that Congress delegated to the President the power to declare war is nonsensical. It did no such thing. All any "declaration of war" does, however it is phrased, is grant the President the authority to use force. He is not under any obligation to actually do anything. Congress can "declare war" using whatever magic words you think it should and the President can refuse to take any action whatsoever.

I am still waiting for you to explain why the AUMF is not a declaration of war as found by the courts. Given your performance so far I expect I'm going to have a long wait.
7.21.2007 12:46pm
a knight (mail) (www):
Professor, Personally, I would consider being described as a "Radical Libertarian", not pejorative, but instead complimentary. Furthermore, any person who claimed to be a libertarian, who took offense to being tagged a radical need be rattled a bit to test if their foundations have been properly grounded into the bedrock of libertarian theory.

The trend in the LP to find "electable" candidates and to reach for a platform "palatable" to mainstream society is apostasy. It is the BobBarring of libertarianism, although in Mr. Barr's defense, he has traversed farther down the path towards a real libertarian point of view, than I would have believed possible, but it is appalling to see so many who claim to be libertarians accept him with open arms given his position that a state has the right to investigate and possibly void any contract between two adults of sound mind, based solely upon the respective genders of the contracting parties. This is NOT a place he can agree to disagree and still rightfully claim to be a libertarian.

I also often refer to this trend as the right-siding of libertarianism, because it sacrifices part of the axiomatic core, and supplants them with corollary rights. This drifts way off into just my personal reflections, but I believe that the analysis of rights as first tier and second tier is wrong. There are natural rights or rights that exist possessed by all humans preeminent to any legitimate state action. From the natural rights flow first corollary rights, which although can be abridged, require a high standard of government conduct and rationale before they can do so. The right to own personal property is a first corollary right in my mind, even though that runs into conflict with most libertarians I have communicated this with. My reasoning for this is because in the four instances of the word 'property' in the Constitution one can only infer a right to own property from it.

* Article. IV.; Section. 3.; Clause 2: is not relevant because it refers to Congresses obligations and duties regarding federally owned property

* twice in the due Process Clause of the Fifth Amendment "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

* The the privileges or immunities clause of the Fourteenth amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

These last three uses of property are regarding only what hoops the state is required to jump through before it rightfully dispossess property from private owners. Does this not make the right to own private property only an implied Constitutional right? If the logic behind Gonzales habeas corpus analysis is correct, could the same logical process not also be used to deny the right to own private property?

Don't misunderstand what I am attempting to argue here. I firmly believe that a right to own property is essential for a free state, but that this right does not exist preexistent to the state's creation. Jefferson explained it thusly:
"It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society."

Thomas Jefferson, letter to Isaac McPherson, August 13, 1813
The Writings of Thomas Jefferson, Definitive Edition, Albert Ellery Bergh, Editor
Vol 13; pp 333,334

It strikes me as exceedingly disingenuous that this implied right to own property is placed upon a higher ground than rights which are explicitly stated with "No person shall be" and "In all criminal prosecutions". These rights express universal bars to governmental actions taken agains humans, yet far too many equivocate, and claim that the sets defined by "No person" and "All" are somehow bounded by citizenry, which the president by his will alone can abrogate.

This is outrageous, and because it delves deeply into the realm of natural rights, it is not up to the executive, the judiciary nor the legislature to decide. They were never authorised any power to control them. They are rights which are possessed by all humanity.

Professor, I am not attempting to be intentionally combative or divisive, only trying to express the wretchedness I sense in the potentialities threading out in front of me, and will to clearly state, these rights are mine, as well as all of humanity's. We were endowed with them at birth by that which each and everyone of us conceive as The Creative Force. There does not exist a pot of cooked lentils big enough to cause me to trade for them. They are not, nor will they ever be placed upon a bargaining table. To do so would be to betray the very core of my being.

Is this then an irreconcilable difference? I will never concede. Am I now forced to go and contemplate the very bedrock of original intent?

Tell me, what is the future to hold? In my head there I keep hearing, "against all enemies foreign and domestic", running alongside, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it", and the angst builds inside of me.
7.21.2007 3:23pm
SIG357:
it is appalling to see so many who claim to be libertarians accept him with open arms given his position that a state has the right to investigate and possibly void any contract between two adults of sound mind, based solely upon the respective genders of the contracting parties.

Given your concern, you will be greatly relieved to learn that he has no such position as you describe.

These rights express universal bars to governmental actions taken agains humans, yet far too many equivocate, and claim that the sets defined by "No person" and "All" are somehow bounded by citizenry, which the president by his will alone can abrogate.


I know that there are people who believe the Constitution of the United States to apply equally to all the people in the world. And other worlds, if they have people on them. I'm just amazed to find such people on a law blog.
7.21.2007 4:34pm
Anonymous Chicken:
SIG357:

There is no need to insult someone for having an opinion on a Constitutional matter, even if you think their opinion is silly or misguided.

If Congress passed a law tomarrow that said: "The President is hereby authorized by the Congress of the United States to pass any law HE THINKS needs to be passed" would that be constitutional or an unconstitutional delegation of Congresses legislative authority? I think clearly unconstitutional on its face.

What about a law that says: "The President is hereby authorized by the Congress of the United States to go to war with any nation HE THINKS could be an enemy of the United States..." Is that a declaration of war against anyone? No, its giving the President unfettered discretion to declare war against anyone he wants. That is, in my opinion, also clearly unconstitutional on its face.

Then tell me, what is the difference between that and our 2001 AUMF which authorizes the President "to make war on those nations, organizations or persons HE DETERMINES planned, authorized, committed or aided the terrorist attacks." That isn't a declaration of war. Thats handing over your power to declare war to the President, and giving him nearly unlimited discretion to attack nearly anyone HE THINKS is an enemy.

You don't even have to go further then Hillary Clinton's floor-speech when voting on the Iraq Resolution, to realize that Congress is delegating their war-declaring authority and power to the President. She said and I quote: "So it is with conviction that I support this resolution as being in the best interests of our nation. A vote for it IS NOT a vote to rush to war; IT IS a vote that puts awesome responsibility in the hands of our President and we say to him - use these powers wisely..."

Such an unlawful delegation of power to the executive, gives the President the authority to attack any nation, at his whim, so long as HE THINKS it is ok. The power to declare war should be in the hands of the people, not at the unfettered discretion of an imperial President.

So there is your answer SIG357, and no, you didn't have to wait a long time.

"The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of the powers confided to congress; and happy it is for the people of America that it is so vested. The term war, embraces the extremes of human misery and iniquity, and is alike the offspring of the one and the parent of the other. What else is the history of war from the earliest ages to the present moment but an afflicting detail of the sufferings and calamities of mankind, resulting from the ambition, usurpation, animosities, resentments, piques, intrigues, avarice, rapacity, oppressions, murders, assassinations, and other crimes, of the few possessing power! How rare are the instances of a just war! How few of those which are thus denominated have had their existence in a national injury! The personal claims of the sovereign are confounded with the interests of the nation over which he presides, and his private grievances or complaints are transferred to the people; who are thus made the victims of a quarrel in which they have no part, until they become principals in it, by their sufferings. War would be banished from the face of the earth, were nations instead of princes to decide upon their necessity. Injustice can never be the collective sentiment of a people emerged from barbarism. Happy the nation where the people are the arbiters of their own interest and their own conduct! Happy were it for the world, did the people of all nations possess this power."

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803.
7.21.2007 5:39pm
NickM (mail) (www):
For the record, the position I described earlier is not my own, but is held by some significant portion of libertarians.

Nick
7.21.2007 11:55pm
a knight (mail) (www):
SIG357; don't play stupid. If you oppose gay marriage, then you are classing contracts, based solely on the gender of the contracting parties. Barr has tempered his public position, but he authored and still supports the Defense of Marriage Act, which if not an actual violation of the Fourteenth Amendment's privileges or immunities clause, it is in opposition to the spirit of it, and his act was penned with the conscious intent of circumventing it, for just this one class of contracts, which again are held to be a different class based solely upon the respective genders of the contracting parties.

Quit pretending to be a libertarian if you do not believe in core personal freedom, but are instead just looking for any straw to grasp which will allow the elimination of the minimum wage. Libertarianism holds as axiom that all humans possess a natural right to liberty; to act freely up until the moment their actions directly impair the liberty of another. All else is corollary, but these corollaries must all be accepted and embraced as libertarian and co-equal in import, both the economic and social issues, or the theory fails to be anything other than a compromised political ideology, just another limb of the uncontrolled leviathan, and at that point, I become responsible for its castration. As I aided in its creation, I am responsible for its acts of hypocritical perversion. Quit right-siding the damn party. You cannot soft-shoe the social implications of libertarian theory as you hammer home eminent domain travesties. They are the flip-side of the same coin. This goes for SameSexMarriage, Open-Border Immigration, Decrimalisation of all legislation regarding personal drug use, and all legislation which criminalises speech of any kind, including hate related or sexual content.

Bob Barr voted for the Patriot Bill, before he became nothing but a former politician in desperate need of personal gun control training. In the 90's he led the charge against the Clinton recommendations for 1995/1996 Terror Prevention Legislation, claiming among other things that the expansion of multipoint wiretap legislation used then in RICO investigations to cover terror suspects was unconstitutional. He had no problem with gutting habeas relief for federally incarcerated prisoners though under the guise of 'terror prevention'. A view of constitutionality based upon the party of the President is a joke, and Barr is a flip-flopping arse. He's no libertarian.

National Platform of the Libertarian Party
Adopted in Convention, July 2, 2006, Portland Oregon
I. Individual Rights and Civil Order
I.9 Sexuality and Gender

The Issue: Politicians use popular fears and taboos to legally impose a particular code of moral and social values. Government regularly denies rights and privileges on the basis of sexual orientation or gender identity.

The Principle: Consenting adults should be free to choose their own sexual practices and personal relationships. Government does not have legitimate authority to define or license personal relationships. Sexuality or gender should have no impact on the rights of individuals.

Solutions: Culture wars, social friction and prejudice will fade when marriage and other personal relationships are treated as private contracts, solely defined by the individuals involved, and government discrimination is not allowed.

Transitional Action: Repeal the federal Defense of Marriage Act and state laws and amendments defining marriage. Oppose any new laws or Constitutional amendments defining terms for personal, private relationships. Repeal any state or federal law assigning special benefits to people based on marital status, family structure, sexual orientation or gender identification. Repeal any state or federal laws denying same-sex partners rights enjoyed by others, such as adoption of children and spousal immigration. End the Defense Department practice of discharging armed forces personnel for sexual orientation. Upgrade all less-than-honorable discharges previously assigned solely for such reasons to honorable status, and delete related information from military personnel files. Repeal all laws discriminating by gender, such as protective labor laws and marriage, divorce, and custody laws which deny the full rights of each individual.

This seems clear as a bell to me. Do you need a bit of assistance comprehending its meaning? Bob Barr obviously does:
Statement regarding Massachusetts Same-Sex Marriage Licenses
Bob Barr dot org - May 17, 2004

In response to the activities surrounding the issuance of same-sex marriage licenses in Massachusetts, former U.S. Representative Bob Barr (GA), the author of the Defense of Marriage Act (DOMA), issued the following statement:

"While I continue to oppose strongly same-sex marriages, I do not subscribe to the sentiments of those pushing a Federal Marriage Amendment that the issuance of same-sex marriage license in Massachusetts constitutes such a national crisis that amending our national Constitution to force all the states to adopt a specific definition of marriage, is the only or even the best way to address the issue. For one thing, the Defense of Marriage Act, which I authored, and which was adopted by an overwhelming majority of Democrat and Republican House and Senate Members and signed by President Clinton, provides protection for each state that the minority view represented by the Commonwealth of Massachusetts cannot be forced on any other state. The courts have not even addressed the constitutionality of DOMA, but I am confident that when they do, it will be found fully adequate to ensure that no one state can force any other state to adopt a definition of marriage its citizens reject.

"The Federal Marriage Amendment, which presupposes DOMA will be found unconstitutional, is premature at best."


What say ye, haute politique couture boi, more friend of liberty mumbley peg?
7.22.2007 9:58am