On Libya, Congress, and the Constitution

On Libya, Congress, and the Constitution
March 20, 2011 by S.M. Oliva

There's a scene in Star Trek III: The Search for Spock that I find useful at times like this. Dr. McCoy is trying to arrange covert passage to a star system declared off-limits by the Federation Council. McCoy asks an alien pilot what it would cost to transport him there. The alien replies that since the system is "restricted," it would take money and "many permits." McCoy replies, "There aren't going to be any damn permits! How can you get a permit to do a damn illegal thing?!"

This is basically my reaction to all the hand-wringing over Barack Obama's decision to attack Libya without first obtaining a congressional declaration of war. Even if Obama had gotten a "permit" from Congress, would his actions be any less illegal? Not if you subscribe to any variant of libertarian ethics.

The conservative assumption is that the right to declare war is a "sovereign" power inherent in all monopoly governments. The libertarian ethic cautions that only individuals have rights; there are no legitimate "sovereign" powers that go beyond these individual rights. The group has no more right or authority than the individual. The metaphorical construct called the "United States of America" has no greater or lesser right to commit aggression against Libya then I do.

Even the Obama acolytes aren't pressing the case that the Libya attack is self-defense. They claim this is a case of protecting "democracy" or the Libyan rebels, or making Libya's ruling gang accountable under "international law." And I suppose if Obama wanted to raise some volunteers, at his own expense, to go to Libya and join the rebellion against the ruling gang, I couldn't really object. But Obama claims some sort of "sovereign" right to not only attack Libya, but to force others ­ the American taxpayers ­ to finance and support the campaign without their consent.

And merely obtaining a congressional "declaration" of war would not, under the libertarian ethic, constitute "consent." Again, Congress has no more "right" to commit aggression against Libya then either Obama or myself. The conservative will point to the Constitution and cite its authorization for Congress to declare war as Gospel. But I don't see what a 220-year-old document ratified as a political compromise between long-dead individuals has to do with our present situation. Lest we forget, the original Constitution passively recognized the forcible ownership of human beings by others. It was not a document predicated on the libertarian concept of individual rights.

Nor was it, as many seem to believe, a contract binding in perpetuity. Contracts can certainly outlive their original parties ­ but only if the successor parties grant meaningful consent. The Constitution was simply thrust upon the successors by force, who were given no affirmative right in whether to continue its terms. Yes, the Constitution grants limited rights of review and amendment -- but no right of exit. If I inherit the shares of a corporation, I am free to sell or abandon them. The Constitution does not permit this. It binds all successors forever to its terms. It's hard to imagine a more un-libertarian principle. (Indeed, the whole notion of binding a population and its successors in perpetuity, without right of exit, goes back to the very slavery concept supported by the original document!)

Even if one could somehow prove the Constitution's legitimacy -- and even some libertarian scholars have attempted to do that, unsuccessfully in my view -- that still does not prove that a congressional declaration of war against Libya is legal or ethical. Again, there's the obvious lack of any self-defense justification. There's also the problem of the United Nations. The present conflict started when the United Nations declared a "no-fly" zone within Libya. The US and its allies claim the right to engage in military action in order to enforce the UN's decrees.

This is nothing new. Most US military actions in the post-World War II era have come in response to UN decrees, including both Iraq wars. In 1990, the elder George Bush reluctantly obtained congressional "authorization" for the first Iraq war long after the UN had given Bush what he claimed was ample justification to attack. Clearly, Bush saw UN approval as primary and congressional approval as secondary (and perhaps optional). That set a clear precedent for Bush's successors, including Obama.

The thing is, there's really nothing remarkable about this. Some will complain that the UN is not a legitimate authority. The rebuttal is that the United States ratified a treaty creating the UN, and any treaty ratified by the US is binding law in perpetuity (like the Constitution itself). The counter argument is that the UN operates so far outside the Constitution's structure as to render it illegitimate. That's correct -- but so what? Congress has repeatedly handed over bits and pieces of its authority to unelected bodies operating outside the Constitution's stated parameters. We call them "regulatory agencies." The UN just happens to be a regulatory agency that includes a lot of non-US members.

Let's take my friends at the Federal Trade Commission. The Constitution never contemplated such an agency. The FTC is not bound by constitutional norms of due process: no jury trials, no impartial judges, "guilty unless proven innocent" in most cases. The FTC has even repeatedly asserted its "right" to act against the wishes of the elected president and his appointees. Yet most people who accept the legitimacy of the Constitution also accept the FTC's legitimacy, largely based on the fact that the government's own courts have decreed it so. I wonder how many of those people are now carping over the illegitimacy of the UN's direction of US military power.

Anytime you try to create "sovereignty" beyond the consent of the individual, you're going to have these problems. The "legitimacy" of various types of government bodies becomes, as Ayn Rand would say, a floating abstraction. What makes a UN or FTC decree any more or less valid than a congressional declaration? As Dr. McCoy observed, you can't get permission to do something that's already illegal. And by libertarian standards, the Libya attack is illegal irrespective of who signed the piece of paper.