Ilana Mercer, May 7, 2003

When The Germans come to stay at “Fawlty Towers,” Basil Fawlty, the quirky hotel manager in the classic British comedy, is adamant to put his best foot forward and not to mention The War. Basil being Basil, this is not to be. The caustic anti-hero suffers a concussion, and spends a good deal of the episode goose-stepping around his poor guests, reducing them to tears.


I’d have preferred not to mention The War during a talk I recently gave at a Libertarian Party convention. To further commandeer the “Fawlty Towers” script: We know who started it! Still, it’s been personally important for me to keep processing it because there are certain things about this war that make it unprecedented. And so, I spoke at length about how it came to be that Americans, by and large, took the war, its prosecutors and their propaganda to their hearts. Needless to say, the effect I had on some in the audience was as intense as the effect Basil Fawlty had on his German guests.


This is a testament to the administration’s achievements. In mere months, Washington has radically transformed the way most Americans—including some libertarians—think. True to their Trotskyist roots, the ideologues in this administration have been catalysts for a consciousness lowering—not raising—among most Americans, breaking down and even inverting certain civilizing precepts which only a short while ago united us.


Commentator Eric S. Margolis offered up a quote by U.S. Supreme Court Justice Robert H. Jackson, America’s senior representative at the 1945 Nuremberg war crimes trials, and the tribunal’s chief prosecutor. It highlights all the more the gaping moral void that has opened up in American society:


“We must make clear to the Germans,” said Jackson, “that the wrong for which their leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.”


Justice Jackson was articulating not a temporary but a timeless truth—the principles of the natural law are indisputably correct. To wage aggressive wars violates a universally accepted verity. It violates the paramount laws that children manage to internalize at a tender age: “…one child must not, without just cause, strike or otherwise hurt, another; that one child must not assume any arbitrary control or domination over another; that one child must not, either by force, deceit, or stealth, obtain possession of anything that belongs to another,” spelled out Lysander Spooner.


To the 19th-century libertarian natural rights theorist this may have been child’s play, but it has become a chore for most Americans. How they square their adoption of Bush’s New Morality (preemptively lying one’s way to war) with their commitment to a higher authority is outside my purview. I do know that the state ought not to come between a libertarian and the natural law.


A vehement letter I received from a conference attendee reveals sadly that many “libertarians” see the law of the state as the ultimate arbiter of right and wrong. Or as the man blasted, “Get your facts straight, the president has the power to declare war under the War Powers Act—like it or not, that is the law.”


The inference here is that what the law says is inviolably just.


The writer got one thing straight: War was declared by executive order! Flouting his obligation to get “the consent of the governed,” to quote the Declaration of Independence, Mr. Bush bullied a corrupt Congress into authorizing war against Iraq before the November midterm elections. Congress’s vote was no more than a formality.

The writer, however, proves ignorant both of the U.S Constitution and the libertarian duty to reject the law of the state when it is at odds with natural justice.


Over to James Madison: “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.” Thus it is Congress that declares a war. The U.S. government is beholden to the Constitution, which prohibits the president from declaring war. Explains Louis Fisher, senior specialist in separation of powers at the Congressional Research Service of the Library of Congress: “Keeping the power to commit the country to war—and to all the costs of war—in separate hands from the power to wage war once declared was a bedrock principle for the framers.”


Modern statutes like the War Powers Resolution, the Iraq Resolution, and the Use of Force Act do not displace the constitutional text and the framers’ intent.


But even if the Constitution approved of Bush and Congress’ subterfuge, the natural law does not. Because it is rational and rooted in the very nature of man, natural justice is immutably true; it is the ultimate guide to what is right or wrong. It may no longer guide most Americans, but it must never cease to inform libertarians



May 7, 2003

CATEGORIES: Constitution, Founding Fathers, Iraq, Libertarianism, Natural Law & Justice, Natural rights, War

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