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A Higher Law than the Constitution

Here's a pretty old post from the blog archives of Geekery Today; it was written about 17 years ago, in 2007, on the World Wide Web.

Ron Paul is perfectly capable of making sharp and incisive moral arguments against the foolishness, and the destructiveness, of U.S. imperialism, whether in the form of the ongoing catastrophe in Iraq or in the form of proposed new slaughters in Iran or North Korea. He has done so many times in the past, both in writing and in speeches, and he deserves praise where he is in the right, as he usually is. But he has also spent quite a bit of time explaining his position in terms of the separation of powers between the President and the Congress, as established in the U.S. Constitution. In response to questions about foreign policy, he has repeatedly argued, first, that current U.S. foreign policy is both foolish and evil, but also, second, that if he became President, he would go to war when, and only when, Congress duly passed a formal declaration of war. See for example the exchange in GT 2007-09-06: Marching orders, and his remarks on attacking North Korea or Iran in his recent interview with Tim Russert.

So here is my open question for Ron Paul, and for the anti-war libertarians who support his candidacy. Suppose that Ron Paul were elected President and publicly declared his intent to put his fundamentalist reading of the Constitution into practice. Suppose also that Congress continues to be what it currently is — a bunch of mad dog world bombers, on the one hand, and a gang of opportunistic doughfaces who go along to get along, on the other. It’s perfectly likely that at some point in the upcoming years, Congress might pass a declaration of war in the name of bogus national interests in order to spread the slaughter into Iran or North Korea. At this point, President Ron Paul has two options:

  1. He can fulfill his Constitutionally-enumerated role as commander-in-chief of the military, and prosecute the imperial war that Congress has ordered him to prosecute; or

  2. He can refuse to fulfill his Constitutionally-enumerated role, by sitting on his hands and refusing to prosecute the war in any way even though Congress has declared it, on the grounds that there is a higher law than the Constitution, and that under the circumstances, following government law would require him to do something that no honest and decent man can do.

In case (1), Ron Paul would willingly make himself the instrument of death and slaughter in the name of a paper rag whose virtues, if it ever had any, must depend entirely on whatever capacity it has for safeguarding, rather than destroying, the life and liberty of innocent people. In case (2), Ron Paul would be taking a powerful moral stand against aggressive war; but in so doing he would have to give up entirely on his palaver about declared wars and strict construction of the Constitution. Which would he be willing to do? I am genuinely unsure myself, based on his statements and actions thus far, and I wonder what others think.

(Interview link courtesy of Austro-Athenian Empire 2007-12-24.)

11 replies to A Higher Law than the Constitution Use a feed to Follow replies to this article · TrackBack URI

  1. todd

    My hope is that Paul is merely using the Constitution is an upper bounds on the limit of government power, rather than believing that everything enumerated therein is automatically just.

    Thus, I would hope that he would go with option #2, but there does not appear to be clear evidence, as you suggest, at this time.

  2. Stan


    I think you are perhaps neglecting the possibility that the justice of the war and the Congressional declaration thereof could be independent necessary conditions for a President to rightfully make war.

    A person may permissibly use force in self defense or in defense of others, but from this, it does not follow that qua agent of another, she may do so with her principal’s resources in contravention of the very Agency Agreement governing the terms of their relationship generally and puts those self-same resources at her disposal.

    Since Paul considers the U.S. Constitution entirely analogous to such an Agency Agreement, with the people of the United States as the relevant principals, it seems clear that he could quite coherently deny the rightfulness of any war that did not involve BOTH (1) jus ad bellum/jus in bello AND (2) a formal declaration of war pursuant to the Constitution.

    This second criterion may appear to have lesser moral weight, but, it has the virtue of being relatively easy to ascertain (look through the Congressional record and see if you can find a formal declaration); whereas, in many cases, people of good will could and do disagree as to the first criterion. In the face of such disagreement (especially among persons having wildly divergent conceptions of what justice requires and/or permits), the assertion that, in any case, there has been no declaration and therefore the war is illicit seems a fairly good and useful argument to make…

    Cheers, Stan

  3. David Gordon

    Grover Cleveland said that even if Congress declared war against Spain, he would, as Commander-in-Chief, refuse to enforce the declaration. Louis Fisher, Presidential War Powers, mentions this. See my review here: http://www.mises.org/misesreview_detail.aspx?control=21

  4. Francois Tremblay

    Why are you asking other people what Ron Paul would do? We’re not psychologists or prophets. How the fuck are we supposed to know?

  5. Rad Geek


    Well, for those who intend to vote for Ron Paul, I think it’s relatively important to have some kind of reasonable expectations about what sorts of things he might do, once in office. Since his anti-interventionist, pro-withdrawal plank is central to his campaign and the central selling point that Ron Paul boosters inevitably fall back on, how he would behave with respect to prosecuting a war seems especially relevant.

    But, as I said, I think his public statements on the matter have been dangerously ambiguous on this point. I’m interested in what others, especially anti-war libertarians who intend to vote for Paul, or are sympathetic to the Paul campaign, think about that.

  6. Bob Kaercher

    Charles, your question underscores the entire conundrum inherent in a libertarian strategy that involves playing the statist game of electoral politics.

    Paul is playing to Mr. and Mrs. Mainstream America, and invoking the sanctity of the constitution is usually a good tune to sing, considering that audience. If anyone with a major media platform were to actually point out the obvious to Mr. and Mrs. America and say that the constitution has been primarily the vehicle of tyranny rather than the foe of it, Mr. and Mrs. America’s heads would most likely explode.

    But then President Paul is faced with a situation where Congress has actually followed the letter of his “divinely inspired” constitution and has actually declared war–what does he do?

    I tell you it’s a moot point, regardless. If Paul were to refuse to prosecute the war, I have no doubt that Congress would impeach and remove him for being “derelict in his duty” to protect the Vaterland, or some such AmeriNazi bullshit, which would also be very consistent with the holy constitution. We don’t live in the quaint times of Grover Cleveland anymore–General Dynamics, Boeing, KBR, et.al. have far too much invested in warmongering to let something so puny as one man’s protestations on behalf of morality or ethics get in their way.

    And that, my friends, is why the statist means is inconsistent with libertarian ends. That particular game is always rigged against us–


  7. Francois Tremblay

    Ron Paul is a politician, he does politics. That should be enough to tell anyone that he’s up to no good.

  8. Bob Kaercher

    BTW, has anyone caught this at Antiwar.com’s blog?:


    Read it and then ask yourself, “Well, is this really such a big surprise?”

— 2008 —

  1. labyrus

    Hey, Rad, I just found another story which would suggest that Ron Paul is actually a huge racist:


    I continue to be astounded by the amount of support he has from so-called libertarians.

  2. Micha Ghertner


    That “story” suggests no such thing. From what I have gathered, the newsletter in question was ghostwritten for Paul (supposedly by Lew Rockwell, although that might just be a rumor), not by Paul. That may say something about the sorts of friends Paul keeps, or his inability to screen and control his staff, but it does not suggest that he is a huge racist. There is enough that is wrong with Paul without resorting to false character assassination.

— 2009 —

  1. Discussed at radgeek.com

    Rad Geek People’s Daily 2009-01-29 – Welcome, Antiwarriors:

    […] 2005-09-17: International Ignore the Constitution Day, GT 2007-09-06: Marching orders, GT 2007-12-28: A Higher Law Than the Constitution, GT 2008-07-04: Revolution Day explain why I’m not a Constitutionalist, and why I think […]

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