Skip to comments.Defense of Liberty: Freedom and War
Posted on 12/02/2001 5:30:29 PM PST by annalex
Freedom and War
Theory of rights: an overview
Natural rights begin with the concept of bubbles of personal space that wrap each individual. Clearly, actions that do not exit the bubble do not impact similar actions of others. From this we develop a set of rightful actions as we examine each action in its immediate impact on others. If an action does not prevent others from exercising rights that we discovered so far, that action is rightful. For example, actions in defense of the personal bubble do not prevent defensive actions of others; hence self-defense is rightful. Self-amplified non-disruptive speech does not prevent self-defense and does not prevent speech of others; hence self-amplified non-disruptive speech is rightful. Voluntary exchange of property that one owns does not prevent self-defense, speech, or exchange of property by others. In this fashion, the entire set of rights can be derived inductively one by one. The common law is a practical implementation of this inductive process in historical context.
Rarely, an inaction can be violative of rights. For example, inaction next to a helpless person whose life is in an immediate peril is no different in its immediate effect from homicide if help can arrive only from the inactor. Provided that the inactor can render help without injury to himself, his inaction is unrightful, and so an act of help becomes a duty.
We note that individual can trade rights. A common example of that is commercial exchange: the buyer gives up his right to a sum of money, and the seller gives up his right to the goods sold. Business contracts involving money, labor, goods and disclosure of information are examples of complex exchange of natural rights. We can distinguish between natural rights, present as part of the natural order of the universe; and contractual rights that derive from voluntary cooperation of men.
Considerable controversy surrounds the issue of acquisition of unclaimed property. Such acquisition is competitive, so when one contender captures a particular piece of property, others are, of course, prevented from acquiring the same piece. Therefore, we can't say that the claiming of the unclaimed piece of property is necessarily rightful. We can say with certainty that if everyone interested in the property has agreed to a particular set of rules under which unclaimed property can be pursued, then to engage in pursuit of the property under such rules becomes rightful. Thus fishermen set up rules of fishing in particular waters; archeologists set up very different rules of archeological discovery. The rules reflect the nature of the property and the interests of the contenders. For example, the rules that the fishermen are likely to adopt would prohibit overfishing; in contrast to that, the search for archeological artifacts encourages complete excavation of the site. In absence of any tradition or explicit rule, the ability to physically defend the previously unclaimed property one claims amounts to the right of ownership.
We examined this definition of rights in my Mathematical Principles of Natural Rights, which I expanded in . This article deals with one theoretical problem with the definition, and arrives to some rather unexpected applications of the theory of natural rights.
Rights in history: a dilemma
One question arises: what if the set of rightful actions depends on the order in which actions are added to the set. Imagine a core set of established rights, to which we wish to add action X and action Y. It is theoretically possible that neither X or Y present a conflict with the core, but conflict between themselves. We are faced with a paradox: if X is added first, then X appears to be rightful and Y unrightful; if Y is added first, then, vice versa, Y is rightful, but X isn't. Do such "weak" rights exist in real life?
They do. It is not difficult to find examples of two cultures, each presenting a consistent set of rights, yet the two sets are not compatible. Consider
Farmers and Indians
A sole Indian looks at the wilderness and says to himself: "I'll hunt in that forest, fish in that river, and pick berries in the bush". If several Indians arrive at the scene, they can all forage with ease and no or little rulemaking is necessary to ensure their foraging rights. Conflicts between foraging rights happen, resolved by force or negotiation. When force is resorted to, it is applied mutually, and the legal principle of foraging is not challenged: the victorious tribe simply succeeds in competitive claiming of their foraging domain. The Indian's behavior with respect to other Indians, even those he fights against, is, by and large, rightful.
When farmers homestead the wilderness, they also can rely on simple rulemaking, force, or threat of force to sort out their claims. Again, a farmer's behavior with respect to other farmers is by and large rightful: his homesteading does not prevent other homesteaders to try their luck.
The situation changes dramatically when a sole farmer and a sole Indian compete for the land. The farmer doesn't want to roam and hunt, -- his system of property rights is based on burning the forest, plowing the fields, and safeguarding the farm's perimeter. The Indian sees his system of foraging rights crumble: it is no longer the matter of not shooting someone else's goat, but the destruction of the entire foraging environment.
Although the Indians may go to war between themselves, and the farmers may fight for territory between themselves, the war between farmers and Indians is a war between civilizations. The difference is that both the farming civilization and the foraging civilization are complete and self-sufficient systems of property rights. No deal exists that would enable them to coexist and maintain their full sets of property rights. The farmers will have to become foragers, or the Indians will have to become farmers, or else the Indians have to become cocooned in what to the farming world looks like another ranch: a reservation.
Thus it is incorrect to say that property rights exist on the foundation of non-violent cooperation. They do that only within the confines of some civilizations. In other civilizations, property rights are something that is determined in a fight. Between civilizations, property rights can only exists as an outcome of a war. It is an illusion that other civilizations are simply ignorant of the only possible system of property rights that works for us. The Indian forager's property rights are just as real as the farmer's. One objective difference is that the farmer's property rights historically extend to capitalism and has brought prosperity to everyone, including the Indians on their reservations: our rights are right and their rights are wrong. Yet they are all rights, operative inside each civilization. The natural, civilization-invariant right is the right to enter competitions and act within rules mutually agreed between the competitors.
It is also incorrect to say that violence always underlies property rights. When a claim to a property is made through a show of force, the force is defensive in character, since the property was previously unowned. At the same time, the principle of non-initiation of violence, frequently used as a theoretical foundation of rights, looks insufficient to adequately explain the competitive nature of property claiming. Several distinctions in the use of violence should be made.
Those occur within a given civilization; although they are violent, they are really competitive games. Farmers fighting between themselves for arable land (directly or through the proxy of professional soldiers), or hunters trying to drive off a hostile tribe understand the rules and mutually accept the violence. One relatively recent example of violent, yet civilizationally coherent system of rights is the practice of dueling. The actions the rightfullness of which is resolved through dueling seem quaint to us: nuances of etiquette, injuries to the hyper-sensitized sense of honor, sexual escapades, frat house rambunctiousness. There is little doubt that, although the violence in duels is very real, and is initiated at least by one side, the behavior is mutually agreed upon and therefore rightful as long as the rules are followed. Attempts to outlaw duels through government fiat in 17 century France were met with the same indignant protestations against tyranny that were heard a century and a half later in reference to modern civil liberties.
Another characteristic of a gentlemen's war is the honest desire to resolve a dispute where nonviolent form of argumentation failed. Each side claims to be objectively right, and, in quieter moments, would acknowledge that the other side has a plausible claim as well. Jacques Barzun describes both the legalistic and the gamelike character of medieval wars as follows :
The endless local wars were not, as is believed, the doing of "robber barons": almost invariably they could show a legal right. When William the Conqueror crossed the Channel to make England his own, he had three substantial claims to the kingship. Land being the main form of wealth and the only source of a meager and chancy subsistence, owning more or less was not solely a question of pride and greed.
War, moreover, had some civilized features -- it was a game. The rules were strict. The word of honor, courtesy between foes, the captured knight deemed a 'friend and brother' until ransomed [...] -- the full code must be observed if the accusation of foul play was to be avoided. ?In 1415 the English and the French heralds watched the battle together form a high place. When the French had fled, King Henry [V] waited anxiously until the principal French herald confirmed that the English were the victors. And it was also for him to name the battle. He named it Agincourt.'"
"Gamelike" should not be taken to de-emphasize the violence. The violence in World War I, -- by the accounts of its veterans -- surpassed the brutality of World War II. However, WWI is a classic example of a gentlemen's war: it started with a formal declaration, and was greeted initially as a welcome and long-awaited resolution of conflicting national claims. It also ended formally, with bizarre attention to ceremony, Much in the Second World War resembled the pattern of the First, -- in particular, the "Strange War" period and the tales of gentlemanly sportsmanship that, we are told, existed between the English and the German pilots. I also heard a tale of a captured Soviet tank commander given by his German captors an opportunity to prove his skill in a staged tank battle, -- which he did, and was released. A theme of sportsmanship permeates the otherwise forgettable film "Enemy at the Gates", depicting a conflict between a German and a Russian snipers at Stalingrad. Yet, altogether the Second World War was a war of a different kind.
... happen when two system of rights, that may be consistent in themselves, need to coexist. Either system may be incomplete, such as for example, the wholly inadequate approximations of natural rights offered by Nazi Germany or Soviet Russia. It is beside the point of this discussion to distinguish between a system of rights that is consistent with itself but not compatible with ours, and a social order that plainly doesn't acknowledge any individual rights. The important difference is that unlike a gentlemen's war, a holy war takes place between civilizations. Our Farmers and Indians example is such war. The evolving conflict between radical Islam and the Western Civilization is another.
Two recent wars provide muddled but vivid examples.
The Second World War was a reprise of WWI, and as I noted, had many features of a gentlemen's war. Yet at its core it wasn't, because neither the Western capitalism, German national socialism, or Soviet communism were compatible systems of rights. WWI could have been resolved by better diplomacy, particularly if the horror of the 4-year slaughter was somehow communicated to the politicians of August 1914. There was no peaceful resolution to Germany's or Japan's claims of civilizational superiority: if Hitler foresaw Germany's defeat he would simply have taken a longer time to prepare for the war that was integral to his worldview. Accordingly, WWII couldn't end in an armistice: a complete annihilation of the enemy's system of rights was the only possible outcome.
The Cold War, along with the Indian wars and the present day War on Terror, come the closest to a clean civilizational conflict, where each side possesses coherent and mutually exclusive ideologies. It is often thought that the Détente that preceded the collapse of Soviet communism was a compromise and a sign of the two systems converging. In fact, Détente was a way for both sides to delay their assault hoping for the other side to collapse. It is true that the West inoculated itself against the most violent and repugnant forms of communism by taking on elements of socialism -- elements that by now have taken a life of their own and may still destroy the Western civilization from within. Nevertheless no convergence of communism and the Western civilization is really possible, because communism is incompatible with natural rights, of which the West is the keeper, on any level. The present coexistence of socialist democratic government and individualist humanist culture in North America and in Europe is unstable and headed for collapse, just like the Cold War could only end with a collapse of the USSR.
Because of the incompatible (or non-existent) system of rights on the other side, each side views the enemy as not fully human. This is not merely a result of wartime propaganda. Rights to a human are inseparable from his physical existence. The absence of rights breeds cripples. The sullen masses of Soviet factory workers or Chinese peasants marching without protest from one site of national sacrifice to another did not look human to a Westerner. Conversely, a freely traveling, self-sovereign, opinionated, self-motivated Westerner didn't look real, or human, to an obedient, collective-aware Homo Sovieticus.
A common mistake is to treat a holy war as a gentlemen's war. This mistake is often committed by peacemakers. In a gentlemen's war a truce is a way to prevent the conflict from undesirable escalation; a truce may evolve into a lasting peace. In a holy war no peace is possible; a truce allows the weaker side to regroup and resume the fight, when the only way to peace is through its complete defeat. The entire knot of Middle Eastern policy since Camp David is the sorry result of this mistake.
Are there any rules that control warmaking under natural law? The question is trivial in the case of competitive violence with mutually agreed upon rules between individuals. Clearly, the presence of rules makes the violence generally rightful for both sides. In a conflict between individuals in absence of rules, the answer is equally obvious: initiated violence is unrightful; reactive violence in proportion to the initiated violence is rightful. However, the paradox of the situation is that when, like in a holy war, each side attempts to complete its culturally circumscribed system of rights, each side views its actions as rightful: the farmer is convinced that burning the forest for agriculture is rightful because he only interacts with other farmers and their rights don't suffer, and the Indian believes that foraging across cultivated fields is rightful because no other Indian is prevented from doing the same. Thus, although both sides violate the natural law, neither side would be able to admit it, and both sides would fight to the bitter end.
The analysis gets complicated when instead of conflicts between individuals we have a conflict between managed collectives, -- that is, between nations ruled by their governments. The determinative factors then become, in addition to the question of initiation of violence versus reactive violence, whether the government is properly representing its constituents, and whether the violence involves noncombatants.
A short digression is necessary at this point. We consider a government representative when a mechanism exists for the citizens to alter the foreign policy. Typically, elections are such mechanism. A representative government can be assumed to have a broad mandate to wage a war under some constitutional conditions. At every given moment in time, a sizable percent of the citizenry may disagree with their government's foreign policy. However, for our purposes in this article it is sufficient to assume that the nation's citizens have universally agreed to delegate their collective defense to the government even when they disagree with a particular policy. Such delegation occurs in any modern democratically governed country, even though any democratic country we know is otherwise not wholly respectful of natural rights due to the pervasiveness of statism in its domestic political organization .
A war of aggression may be just even though individual acts of aggression are always unrightful, in one case (discovered by Ayn Rand in ). If a representative government sees a national interest being served by attacking a dictatorial government, and can do so without incurring a significant overall cost, it can initiate aggression against such government, as long as the civilian population of the dictatorship does not suffer beyond measure and its liberation is among the war's intended outcomes. Indeed, the population of the country being attacked is already suffering from the political violence initiated by the dictator; the effect on the population is the relief from oppression, bought at the price of limited wartime hardship. The overall costs of war to the aggressor are outweighed by the national interest served; while the cost to the aggressor's combatants may be their life, in a representative government consent of the soldier to go to battle can be presumed. In short, a free nation may invade an enslaved nation if it wishes, as long as the aggression is limited against that nation's government.
While individual response to an aggression or a credible threat thereof is rightful as long as it is proportional to the injury, a reactive war may still be unjust. Let us consider four possibilities: a reactive war waged by a representative government, and a reactive war waged by a government that usurps power, in combination with the independent cases of hostilities that spare non-combatants or victimize noncombatants.
1. A representative government waging a reactive war strictly against enemy soldiers is obviously rightful. The only difference between such war and the case of individual self-defense is that the defense is delegated to the professional army.As we've seen, strikes against civilians are nearly always unjust. However, in the context of an overall just war, tactical strikes against civilian population are permissible whenever the enemy forces mingle with it. In such case, the victimization is initiated by the enemy's soldiers who, in effect, take civilians as hostages. The combatants on the just side may strike at civilians as long as the primary target is the enemy combatants. The difference between this situation and a criminal hostage crisis being resolved by police is that the police has a contractual responsibility to protect the hostage, and the soldier's don't have any special responsibilities toward the enemy's civilians.
2. A representative government waging a reactive war that victimizes enemy civilians is just only if the victimized civilians are directly in charge of their military. That is because if a strong agency relationship exists between a certain segment of the enemy populace and the enemy military, then that civilian segment is the initiator of violence. Note that the mere fact that the enemy's government is democratically elected is not enough to indict the entire population, because military policy even in a democracy cannot be conducted with universal consent. In practical terms it means that things like assassinations of enemy leaders are permissible in an otherwise just war.
3. A dictatorial government waging a reactive war strictly against enemy soldiers may still be an unjust war. That is because in absence of the delegation of defense the individual rights test comes down to whether a particular segment of civilian population is directly attacked. Imagine a country with an oppressed minority inside, which is being invaded. The civilian population in the invader's path is under direct threat and no delegation of defense is required to make its defense by the professional military (or, to that matter, by anyone else) rightful. However, the oppressed minority may in fact welcome the invasion. If the defensive military action is undertaken on the minority's territory, its justice becomes very problematic. Such was the situation when some oppressed minorities in Stalin's Soviet Union welcomed the invading German army, seeing in Hitler a liberator.
4. A dictatorial government waging a reactive war that victimizes enemy civilians may be acting unjustly even in strikes against the enemy's civilian leaders. That is for the same reasons as strikes against the enemy's military in the previous case.
The Church, in particular St. Augustine and St. Thomas Aquinas developed the ethics of just war in the Christian West as part of natural law [6,7]. While no reference to individual rights was made, their conclusions, based on the common sense of right and wrong, match the above analysis very well. As we've seen, a just war must aim to remedy a wrong, must employ force in proportion to the goal of just peace, must be conducted by a just government and must minimize civilian suffering. Analytical approaches available under the theory on individual natural rights allowed us to refine those general principles, and in some occasions, reach conclusions that startle the conventional wisdom. Let us briefly comment on the elements of the Christian theory of just war.
Just authority: Only the legitimate rulers of the state may declare war.
As we've seen, a government that lacks authorization from its populace may wage a war only inasmuch as it happens to coincide with the just intentions of the populace.
Just cause: A nation may wage war on another nation only if the latter has done some injury.
Indeed, a just war, even when aggressive, is against a government that had violated individual rights.
Right intentions: The intention of the warriors must be the achievement of just peace.
A war has its justification in violations of individual rights. As soon as the violation is remedied (to the extent the war is capable of delivering a remedy), the war must end.
Proportionality: The anticipated good must not be outweighed by the bad likely to be caused along the way.
This principle applies to the conduct of the war, as well as to its declaration. In either case, it is a cardinal principle of individual rights. Since a war is a collective enterprise, we need to consider the situation when the retaliation that would be properly directed at X causes harm to Y -- in other words, when a war harms the innocent. The justification of such harm is, as we've seen, in that the innocent is in effect taken hostage by the guilty party. But then the harm to the hostage needs to be weighed against the likely harm to future victims. If a thief who stole $100 is surrounded by a SWAT team and takes a hostage, the SWAT team should let the thief go because the likely future harm -- another stolen $100 -- is less than the likely harm to the hostage if the thief is apprehended violently.
Probability of success: There must be a reasonable prospect that the war will succeed.
This is where individual rights differ from the justice of the collective enterprise. For an individual, it is rightful to engage in desperate self-defense. It is however not rightful for the government to wage a war whose likely outcome to its citizens will worsen their present condition.
Last resort: Peaceful alternatives must all have been exhausted first.
This principle was implicitly used by Aquinas in arguing for the sovereign authority, when he noted that anyone ranking below the sovereign can use courts and not violence. With the emergence of transnational jurisdictions, this principle becomes independent form the Just Authority principle. Indeed, if a peaceful resolution is possible and war is waged instead, then that war is by definition aggressive. We saw that an aggressive war is still justified under some conditions if it serves the national interest. It is difficult to imagine a scenario when a peaceful resolution would not serve the national interest just as well or better than hostilities.
Discrimination. No killing of noncombatants.
We saw that noncombatants are just targets in two cases: when they directly authorize unjust violence, and when they are collaterally victimized as a result of mingling with the militants. This is how the principle of discrimination is traditionally applied as well, although the US law has a somewhat strange prohibition on assassination of foreign leaders.
It is incorrect to view natural rights as an antithesis to violence. While unprovoked and unexpected assault is certainly unrightful, many forms of violence are a necessary component of natural rights. The principle of non-initiation of violence, usually equated with natural rights, is not particularly helpful in addressing real life conflicts where the act of initiation could be traced back centuries, or where initiation is mutual. The proper approach to conflicts is to examine the cultural aspect of the violence, rather than "who started it". Especially important is to distinguish between cases when the violence is mutually agreed upon, -- and therefore by and large rightful even for the side that makes the first move, -- and cases when no mutual agreement is possible. The latter is a kind of conflict that allows for only radical resolutions, and an attempt to deescalate the conflict through coercive peacemaking only prolongs the violence.
The precise analysis of individual rights can be applied to complex relationships between the citizens, their governments and their military, that are typical in wars. The traditional in the Christian West concept of just war is in compliance with the theory of individual natural rights. In particular, St. Aquinas' requirement of "authority of the sovereign" -- in modern parlance, representative government -- is pivotal in determining the scope of just military actions.
 The Mathematical Principles of Natural Rights
 The Mathematical Principles of Natural Rights (With Addenda)
 "From Dawn to Decadence", pp. 226-227, embedded quote from John Keegan, "The Face of Battle", italics are Barzun's.
 This point is argued in Foreign Policy and Natural Law.
 Ayn Rand. Collectivized Rights. (Also see Just Intervention.
 Whether it is always sinful to wage war? (Aquinas on Just War)
 Just War Theory
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I plan to take a break from the Defense of Liberty series and will skip a few weeks. Suggestions of topics to discuss are always welcome. If you would like to be on my bump list, for the Defense of Liberty series, please let me know.
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(Soudan Expeditionary Force)
We've fought with many men acrost the seas,
An' some of 'em was brave an' some was not:
The Paythan an' the Zulu an' Burmese;
But the Fuzzy was the finest o' the lot.
We never got a ha'porth's change of 'im:
'E squatted in the scrub an' 'ocked our 'orses,
'E cut our sentries up at Sua~kim~,
An' 'e played the cat an' banjo with our forces.
So 'ere's ~to~ you, Fuzzy-Wuzzy, at your 'ome in the Soudan;
You're a pore benighted 'eathen but a first-class fightin' man;
We gives you your certificate, an' if you want it signed
We'll come an' 'ave a romp with you whenever you're inclined.
We took our chanst among the Khyber 'ills,
The Boers knocked us silly at a mile,
The Burman give us Irriwaddy chills,
An' a Zulu ~impi~ dished us up in style:
But all we ever got from such as they
Was pop to what the Fuzzy made us swaller;
We 'eld our bloomin' own, the papers say,
But man for man the Fuzzy knocked us 'oller.
Then 'ere's ~to~ you, Fuzzy-Wuzzy, an' the missis and the kid;
Our orders was to break you, an' of course we went an' did.
We sloshed you with Martinis, an' it wasn't 'ardly fair;
But for all the odds agin' you, Fuzzy-Wuz, you broke the square.
'E 'asn't got no papers of 'is own,
'E 'asn't got no medals nor rewards,
So we must certify the skill 'e's shown
In usin' of 'is long two-'anded swords:
When 'e's 'oppin' in an' out among the bush
With 'is coffin-'eaded shield an' shovel-spear,
An 'appy day with Fuzzy on the rush
Will last an 'ealthy Tommy for a year.
So 'ere's ~to~ you, Fuzzy-Wuzzy, an' your friends which are no more,
If we 'adn't lost some messmates we would 'elp you to deplore;
But give an' take's the gospel, an' we'll call the bargain fair,
For if you 'ave lost more than us, you crumpled up the square!
'E rushes at the smoke when we let drive,
An', before we know, 'e's 'ackin' at our 'ead;
'E's all 'ot sand an' ginger when alive,
An' 'e's generally shammin' when 'e's dead.
'E's a daisy, 'e's a ducky, 'e's a lamb!
'E's a injia-rubber idiot on the spree,
'E's the on'y thing that doesn't give a damn
For a Regiment o' British Infantree!
So 'ere's ~to~ you, Fuzzy-Wuzzy, at your 'ome in the Soudan;
You're a pore benighted 'eathen but a first-class fightin' man;
An' 'ere's ~to~ you, Fuzzy-Wuzzy, with your 'ayrick 'ead of 'air --
You big black boundin' beggar -- for you broke a British square!
Bit of a disagreement here. I would suggest that the foraging "civilization" doesn't have property rights as we know them. So there is no conflict of property rights. There is a conflict between a society that has such rights and one that doesn't recognize them at all. (Tribal territory, used by custom, isn't the same thing at as a property right.)
he difference is that both the farming civilization and the foraging civilization are complete and self-sufficient systems of rights.But I would stand by the text as written. "Property" is no more that a collection of rightful actions with respect to an inanimate object. An Indian system of foraging rights, although is non-exclusive, still qualifies as property as it describes what is and what isn't rightful to do in a wilderness.
What is the basis of a "natural" right to property, and if it is natural, pre-existing law, then explain for me how it applies only to some human beings? I think you hang quite a lot on that phrase "as we know them." Are natural rights so completely open to interpretation that whole ways of life are beyond their scope?
I am going to have to read carefully through this article.
The endless local wars were not, as is believed, the doing of "robber barons" ...are a quote from Barzun (with an embedded quote). The two paragraphs were supposed to be indented, and the starting quotation mark is missing.
War, moreover, had some civilized features -- it was a game. ...
They couldn't but overlook it. A civilization can't see beyond its scope.
I don't know about that. I was just reading the chapter in Poor Richard's Almanac which compares indian civility to white civility. Funny passage. Written in the 1750's. Clearly looks outside its scope.
"We hold these truths to be self evident..."
They must have seen it too. George Washington was a fierce land speculator. Employed Daniel Boone to go and fight indians for him, so that he could procure more land. They evidently agreed with you, annalex, that the right to property is actually obtained by brute force.
I take my statement in #10 back, in the sense that academically, one can visualize things beyond the horizon, but constitution-writing is not an academic exercise. It is notable that Jefferson replaced "pursuit of property" with "pursuit of happiness" in the final draft, recognizing that "property" doesn't have, academically, a clear meaning.
Thus any suggestion that bin Laden's declaration of war puts us at war is false. We are not at war either as our leaders have not declared a constitutional war.
We are involved in an unjust action.
Hmm. I suppose you are right. I would think that at least the many Virginia land owners--Washington, Jefferson, Madison, Henry being the most notable--fairly understood land as property, and probably thought it synonymous with happiness to own land. My point, which isn't so much a point as a musing prompted by your article (I haven't the scholarship to make points on this matter), is that those who were actively involved in taking land from the natives, must have understood in the process that a right to property is based on force; first the force to take the land, then the force to make and keep the rules that govern ownership.
Then, of course, one remembers that these same individuals not only treated the right to property inconsistently depending on your cultural makeup, they treated ALL liberty in such a way, as evidenced by the African slave trade. When I get around to studying John Adams, I will be interested to see what he may have said or written or done regarding the native American tribes.
And by the way, have you ever noticed that the power of Congress to declare war and the power to repel invasions are listed separately?
From the Constitution:
Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Almost looks like declaring war is not always necessary for the calling forth of troops. And that is just looking at the Constitution. The War Powers Act makes it even plainer to me.
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