A Libertarian Constitution

A review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett

Randy Barnett is one of the legal academy's leading libertarian theorists. His latest book is an exceedingly ambitious effort to show that the United States Constitution, rightly understood, protects individual liberty to a far greater extent than the Supreme Court has ever recognized.
Through a complex series of arguments, Barnett attempts to demonstrate that the Constitution requires courts to adopt what he calls a "Presumption of Liberty," which should lead them to nullify every law abridging any of an open-ended class of natural rights unless the government can demonstrate that the law meets stringent criteria of necessity and propriety.

Restoring the Lost Constitution advances three main theses. First, Barnett presents a theory of legitimacy, arguing that laws are "binding in conscience" only if there is a sufficient reason to believe that they do not unnecessarily, or improperly, violate the natural rights of the governed.

Second, he maintains that the Constitution requires courts to protect these natural rights by invalidating all federal laws that unnecessarily or improperly abridge them.

Finally, he contends that the Constitution also requires the same aggressive judicial approach to state laws that it requires with respect to federal laws.

Because I shall criticize some crucial elements in Barnett's argument, I should emphasize at the outset that this intelligent, thought-provoking book deserves to be read carefully by anyone who believes that the Constitution is a higher form of law than Supreme Court decisions.

As the Declaration of Independence announces, and as other evidence confirms, there was a broad consensus among the founding generation that the principal purpose of human government is to secure certain inherent or natural human rights.
The most obvious reflections of this consensus in the Constitution itself are the limited grant of enumerated powers to Congress, the separation of powers, and the enumeration of several individual rights.
In addition, Barnett believes, the judiciary has been commanded to identify and protect a vast, unenumerated body of natural rights by the 9th Amendment, which provides: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Because he thinks this provision establishes a constitutional Presumption of Liberty, Barnett vigorously objects to the Supreme Court's consistent refusal to rely on the 9th Amendment in deciding cases.

The 9th Amendment is a companion to the 10th Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
As the 10th Amendment affirms that the Constitution's enumeration of powers is exhaustive, so the 9th Amendment affirms that its enumeration of rights is not exhaustive. This makes perfect sense because individual rights and government authority are correlative: if a government does not have the authority to issue certain commands to its citizens, they have a right not to be subjected to those commands by that government.

Thus, the 9th and 10th Amendments together serve as an emphatic, and indeed justiciable, reminder that the Constitution protects a vast number of unenumerated rights from infringement by the federal government, namely all those rights that the federal government is not authorized to abridge in the exercise of its enumerated powers. Some of them may be natural rights, some are positive rights established by state law, and some are political rights exercised in the course of establishing state law. The language of the 9th Amendment does not give a privileged status to any one of these categories of rights.

Two principal sources of the vast expansion of federal power have been the Commerce Clause and the so-called Sweeping Clause: "The Congress shall have Power…. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The Supreme Court has interpreted these provisions to allow Congress to regulate or prohibit virtually any commercial activity, including wholly intrastate activities, and a vast range of non-commercial activities as well. The Court's theory, in a nutshell, is that such activities may "affect" commerce among the several states and that it is therefore necessary and proper for Congress to control them.

Barnett provides a detailed demonstration that this theory is a departure from the original meaning of the Constitution, and he offers a number of thoughtful and generally plausible suggestions about how best to construe and apply the Commerce and Sweeping Clauses. If the Court were to accept something reasonably close to the original meaning of these provisions, the federal government would have a lot less power than it exercises today, and the people would correspondingly have much more freedom from federal interference in their lives.

The most radical thesis in Barnett's book is that judges are charged by the Constitution with protecting a vast range of unenumerated natural rights from interference by state law.

Barnett also has a different, and somewhat more plausible basis for concluding that the Constitution commands judges to protect natural rights from state interference.
The 14th Amendment provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…." Barnett argues that these privileges and immunities are the very same natural rights that he thinks are also protected by the 9th Amendment, a conclusion that he rests primarily on evidence from the legislative history of the 14th Amendment.
He vigorously attacks the Supreme Court's contrary interpretation, and especially the landmark 1873 Slaughterhouse decision, which held that the only privileges and immunities protected by this clause are those peculiarly attributable to national citizenship, like the right to travel to the national capital.

Even if one accepted Barnett's claim that the 14th Amendment was meant to authorize judges to nullify state laws that abridge certain unenumerated substantive rights, one would still have to ask how judges are supposed to identify these rights.
Barnett's answer is that everybody has a presumptive right to engage in any conduct that does not interfere with the rights of other persons, unless the government can show that a specific regulation is needed to facilitate everyone's exercise of the right.

The privileges and immunities protected by the 14th Amendment, Barnett maintains, can be identified by looking at state common law. This cannot be right.
The common law is a collection of rules adopted by judges in the course of deciding cases that are not covered by a state constitution or statute. These rules vary somewhat from state to state, and they can be altered or abolished in any state by its legislature. Because the 14th Amendment expressly imposes a restriction on state law, the substance of what it protects cannot possibly be determined by state law (unless the Privileges or Immunities Clause is only an anti-discrimination provision rather than a substantive guarantee, an interpretation that Barnett implicitly rejects).

While Barnett notes, accurately enough, that state common-law judges constantly make decisions distinguishing rightful from wrongful conduct, he neglects the significance of the fact that they are always doing so in the shadow of the state legislature's plenary authority (which is frequently exercised) to alter or preempt those decisions by statute. If these common-law decisions were suddenly to become the unalterable determinants of the rights protected by the 14th Amendment, state judges would be elevated to the role of philosopher-kings.
Yet, if the distinction between rightful and wrongful conduct were defined by the common law as altered or preempted by state statutes, the Privileges or Immunities Clause would place no constraints at all on state governments, which would make an absurdity of the 14th Amendment provision.

Elsewhere, the book takes a different approach to identifying the relevant privileges and immunities. Courts and commentators have long assumed that the Constitution leaves largely intact something called the "police power" of the state governments, which is a general authority to regulate and govern the citizenry. Barnett suggests that 14th Amendment privileges and immunities are those rights not subject to this power.

But what exactly is the police power's scope? It is never mentioned, let alone defined, in the Constitution. Barnett articulates and embraces what he calls a Lockean theory of the police power, but his only authorities for imputing this theory to the Constitution are judicial decisions and academic commentaries. And even those authorities generally give the states much more discretion to abridge people's liberties than Barnett is willing to allow. It is perfectly obvious that the states would be well advised to limit government power and protect important individual rights in their state constitutions.
In fact, all the states have done just that, though not to the extent that Barnett thinks they should. Whatever the merits of his view of the proper scope of government power, and whether or not his is a correct interpretation of Locke, showing that the Constitution enacted his view into law would require far more evidence than Barnett provides.

Restoring the Lost Constitution is an impressive attempt to demonstrate that our written Constitution enacted into law a sweeping and highly libertarian theory of natural rights and limited government.
I have passed more lightly than I would have liked over Barnett's attractively coherent analytical approach, which contrasts with the frequently sloppy Supreme Court opinions that our legal system treats as the authoritative expression of constitutional law. It is sad how much of our fundamental law has gotten lost beneath an obscuring blanket of Supreme Court decisions, and Barnett's effort to recover the lost Constitution is a noble undertaking, even if it is not completely successful.

Isn't an act that damages others an "innately immoral act"?

Yes, but not all innately immoral acts damage others. Damaging oneself is innately immoral. What's between you and God is whether or not you repent. Punishing you for your crimes on Earth is the state's business and has nothing to do with the question of your Salvation.

"Examples include adultery, theft, and murder". Prostitution is not mentioned, but mentioned are all acts that harm another.

Most people would probably consider adultery a consensual crime.

“Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.” - Justice Antonin Scalia

Neither States nor Feds were given the power to write prohibitive types of law that infringe upon individual rights to life, liberty, or property.
This point was clarified by the 14th amendment; -- then immediately ignored once again.

Under the states' police power, even a right can be regulated, so long as that right is not regulated away.

I agree. 'Regulations' can get pretty close to being prohibitive decrees, -- but there is an uncrossable line, one, imo, best established by informed juries dealing with the case at hand. Laws that 'cross the line' should be nullified by juries empowered to judge both the facts & the law.

Examples are doctors and lawyers. Anyone has the right to become a doctor or lawyer, but since these professions can damage a person severely by their incompetent application, they come under the state's police power, which, incidentally, gives the state right to license as an excise.
This principle has been badly abused lately.

Professional fraud is always with us. As you say, States have the power to license dangerous occupations, but this should not be used as license to restrict them.

Tailgunner Joe wrote:

Damaging oneself is innately immoral. Punishing you for your crimes on Earth is the state's business.

And of course the state can find excuses to find literally ANY-thing "innately immoral":

in the 1974 court-martial case of Parker v. Levy, Justice Harry Blackmun (ironically, coming from the author of the landmark decision legalizing abortion, Roe v. Wade) wrote that some actions, such as "engaging in sexual acts with a chicken, or window peeping in a trailer park, or cheating while calling bingo numbers' were so contrary to "fundamental concepts of right and wrong" that they could be punished as "conduct unbecoming an officer and a gentleman" even if they were not specifically prohibited by the Uniform Code of Military Justice.

And in the 1991 nude dancing case, Barnes v. Glen Theatre, Inc., the Court held that "Public nudity was considered an act malum in se."
As Justice Antonin Scalia elaborated:
"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral.
In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."

Bah.. -- 'Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because we want to control the behaviors of our peers, regardless of Constitutional law.'
-- Mark my words. If Scalia ever decides a 2nd amendment case, he will give lip service to our 'individual right', and then find some excuse to virtually regulate it out of existence. The man is a dyed in the wool authoritarian.

What I meant to say was that libertarians belonged to the Republican Party before there was a Libertarian Party.

They actually belonged to both the dems and puppys prior to the LP. But were in very small numbers. Libertarians have a long history of rejecting both parties that predates the founding of the LP.

The LP has been a one man show and even now more libertarians are RP than LP.

What do you mean that the LP has been a one man show? Who is this LP guru you speak of? Or did you just make that up because the idea sounded good to you?

Likewise, on what basis do you claim the Republican Party has more libertarians than the LP. I know that surveys done in the past by various non-LP libertarian think tanks and independent publications found the vast majority of members, subscribers and supporters to be politically non-affiliated. A very credible national survey published in the Washington Post, titled "Core Beliefs Recast Party Lines" on October 4, 1998 placed libertarians as one of the 5 main groupings with in the Democratic Party. Of course they were the smallest grouping at only 9%, but on closer examination of the strong criteria used to identify them, it looks to me as though at least a third of them were probably real libertarians. If that is the case, then by my assessment, there are about twice as many libertarian democrats as their are libertarian republicans.

Also if we look at average libertarian vote percentages nation wide at 2.5% for non campaigning "paper candidates" for state legislatures in 3 way races, as well as the size of local Libertarian Party organizations as compared to Republican Party organizations a 40 to one ratio appears to hold. Now if you think libertarians make up even 2% of the freepers, you are dreaming. And I assure you they are better represented here than in the Republican Party. There are not more libertarians in the Republican Party than in the Libertarian Party.

You are wrong about what you inaccurately call the required oath to join the Libertarian Party of Pennsylvania. Beside the fact that their is no oath, neither the word "aggressive" or "aggression" appear in any membership statement of agreement or pledge. The Pennsylvania party's statement is a pledge, where as the national LP only requires a statement of agreement.

Your bragging about your inability to distinguish a difference between the words "aggression" and "initiation" are only surpassed by your inability to distinguish a difference between an oath, a pledge and a statement of agreement. As one of those who on more than one occasion has taken a serious important long lasting oath with full understanding of its significance, your belittling it as nothing more than a pledge or worse, a statement of agreement, I find quite distasteful. There are those who attach a special meaning to an oaths that reach far beyond any petty domestic political differences. When you choose to try to dishonor the value of an oath, you only show off your own dishonorable character.

The fact that you considered your LP pledge to be an oath, say that you have never taken a serious oath, or if you did, you didn't take it seriously. In either case, I would never put any trust in you as an honorable person.

The way in which you exaggerate and misrepresent libertarian positions, show you to be a person who lacks honesty as a personal virtue. It also shows you to be a person who fears the truth battle. As for me, I'm glad you are out of the LP, it currently has far to many chickenhawks.

Have a nice life - good night.

The second amendment as it was written was taken away a long time ago.

This is quite true politically speaking. But from a practical stand point of the population having enough arms available to it to be able "protect... rights" as you said in #41, it is still in full force across most of America. Thus I concluded that either you think that government has not taken away any of your rights, or your claim to be able to protect them was hollow.

No flame is intended here. As I see it, strategic visions need to be solidly grounded in the reality of the situation. The second amendment will protect us from sudden drastic usurpation of our rights. But it affords little real protection against the gradual usurpation. That kind of protection comes with a readiness to engage in the war of words.

As a martial artist, I'm sure you are aware of the necessity for training and sparring in friendly battles for preparedness. The same is true in the war of words. Sparing here with allies over petty differences, helps prepare ones self, as well as opponents here, to do battle with real enemies later. As a sparring partner, you help your opponent prepare. Assuming at the get go that an other is probably right and oneself wrong, is a disservice to all concerned.

It's a good and complicated moral question, in terms more general than liberty. To what extent does our commitment to GoodThingX require us to participate in the propagation of GoodThingX? Unfortunately, it has no general answer for all GoodThingsX, and in all situations for any particulars.

My answer for liberty is: I'm willing to give up my life for the liberty of those people who are exactly the people whose lives I would sacrifice myself to preserve. That doesn't sound like it would extend very far (for most people not much further than their families), but of course it does in practical terms because everyone put in this position has to measure proximate against ultimate danger, and most people determine the ultimate danger against a complicated milieu of history, context, personality, power of the enemy, etc. So, there's a widening circle including family, (some) friends, which pretty immediately extends to country. The compulsion to act falls off in intensity as we consider allies, innocents who aren't allies, and even adversaries.

That isn't to say no exertions should be made on behalf of liberty simply because we don't regard ourselves in a life-or-death situation. As a practical matter we understood the value of, say Radio Free Europe, or economic sanctions against the most oppressive regimes. Clearly, our liberty is safer when more people share liberty as their cause.

This sounds like an equivocating answer from someone who maintains that a person who loves liberty has a duty to die for it. Truly it isn't. Reflection, debate, and a measured policy are more important tools in the furtherance of liberty--or nearly anything--than passion. But I think too many people believe that all that's needed are the intellectual tools. When the danger is real, we need action as well. It seems to me, for example, that most of Europe knows how to talk great principles, but no longer has the vitality to actually defend its own civilization. I think this is a failing of the LP as well, which is why I'm no longer a Libertarian, but remain, proudly, a libertarian.

neither the word "aggressive" or "aggression" appear in any membership statement of agreement or pledge.

I know rational debate is difficult for those with short-term memory problems, but try to keep up. I used the word "aggressive" in my paraphrasing of the LP of PA pledge. That word implies initiation of force. Next time, I'll quote the exact pledge for the hopelessly--and irrelevently--pedantic. Its meaning won't be different.

The Pennsylvania party's statement is a pledge, where as the national LP only requires a statement of agreement.

Uh, huh. Thanks for conceding my point, finally, that many LP's require a pledge of this kind.

As one of those who on more than one occasion has taken a serious important long lasting oath with full understanding of its significance, your belittling it as nothing more than a pledge or worse, a statement of agreement, I find quite distasteful.

[snip ... and a great deal more genuinely nasty personal invective and meaningless nonsense of this kind].

I have taken a "real", long-term, serious oath on several occasions, including one still binding on me to support, protect, and defend the Constitution of the United States of America against all enemies, foreign and domestic. I regard that oath as sacred, solemn, and binding to the fullest extent of my ability. You don't know anything about me, or the sacrifices made by me or my family, and although it's fashionable for pacifists to call anyone who supports the war on terror with global reach as a "chickenhawk, [sic]" your epithet doesn't apply. Furthermore, I take every pledge, oath, or statement of affirmation I make as true and correct and binding on me. Your ability to make a statement of agreement you really don't consider binding, indeed, says everything about you and nothing about me whatever.

The way in which you exaggerate and misrepresent libertarian positions, show you to be a person who lacks honesty as a personal virtue. It also shows you to be a person who fears the truth battle.

Nice try, but even your ad hominem doesn't cut it. You haven't substantively disputed any of my criticisms of the LP. Indeed, in several places you've reaffirmed them. For example, while you originally claimed the LP wasn't a pacifist party, you then took great pains to prove that pacifism is the direction in which the LP has always and consistently been moving. I see in this post you've decided to go strictly personal, and have dropped that argument. Good for you. At least you recognize the tactical importance of giving up an indefensible position. As for my original claim that the most LP's require a pacifist oath, pledge, statement of agreement, or whatever you wish to call it, I see you've dropped that position, too, preferring rather to lamely assert in effect that "it really isn't something you have to believe in, you just sign off on it. It's not like it's a real oath." OK. So why then is this pledge/oath/vow/silly sentence so important that it appears in the membership application of most LP's?

As for me, I'm glad you are out of the LP

On that, which is the most important part of this discussion, we heartily agree. Glad to see the LP is still building membership in the usual way.

OK, so you are unable to distinguish a difference between an oath, a pledge and a statement of agreement. Likewise, you are unable to distinguish a difference between the words "aggressive" and "initiate." Fine, but words have meaning no matter how much you shut your eyes to them.

I did not concede your point that Pennsylvania or any other state LP required a pledge, as it was me that brought the word "pledge" into the discussion while disagreeing with your claim that their was a required "oath."

Your ability to make a statement of agreement you really don't consider binding, indeed, says everything about you and nothing about me whatever.

Now that's interesting, I never implied such, and your saying as much, does say a lot about you.

Nice try, but even your ad hominem doesn't cut it.

I agree. I'll cut out the ad hominem counters, if you will cut out the same, as well as your dishonesty.

...you originally claimed the LP wasn't a pacifist party, you then took great pains to prove that pacifism is the direction in which the LP has always and consistently been moving.

Hmmm, "great pains" seems a bit of an over statement for a couple sentences relating to the subject. At any rate, I stated nothing that suggested that the LP is even remotely a pacifist party. Nor did I state anything that demonstrated pacifism to be the direction the LP was taking, as you claim. I did however set out by definition, that the LP is not a pacifist party. You might have missed it as you do not concern your self over the meaning of the word "initiate."

I see... you've... dropped... an indefensible position. ...I see you've dropped that position, too...

I've dropped nothing. You just hadn't offered anything new that was worthy of a return to old ground. I see no reason to repeat myself over and over with the belief, as you seem to have, that in doing so it somehow will make it true.

So why then is this pledge/oath/vow/silly sentence so important that it appears in the membership application of most LP's?

It doesn't.

I'm wondering why I upset you so much. I've looked back over our exchange and have found the one sentence from my first reply that seems to have set you off. It started with you replying to a comment by another poster that:

A man who truly loves liberty would be willing to fight for it.

Where upon you wrote:

A man who truly loves liberty has a duty to die for it.

Upon which I wrote:

I see you are still alive.

I agree that a man who loves liberty is willing to fight for it at risk of his own life. I do not however agree that he has a duty to "die for it." Since you are still alive, it seems you don't either.

...instead of extending American protection to Americans overseas...

I for the most part agree with you here. But I'm just not sure I've thought this one over to the degree it needs. I understand the argument and appeal the position has to many middle and poorer classes of Americans that they shouldn't have to pay to protect rich Americans hobnobbing, vacationing, and even doing business abroad. The problem however, is where to draw the line.

We of course could argue that even where American citizens are invited, they travel at their own risk. We can also argue that merchant shipping companies should cover the costs of their own naval protection. Likewise, the same can be proposed for airlines. As far as American officials and employees at foreign embassies and councilets, we can just bring them home. Or require even them to travel and stay abroad at their own risk.

On the otherhand, do we want American companies engaged in fullblown private wars with foreign powers? If not, what kinds of limits would we put on private company self protective measures. Currently, though only selectively enforced, we have laws limiting the paramilitary security activities abroad of American citizens and large companies. Admittedly we could enforce more fully such laws and leave the entirety of our foreign relations to good will. But...

That would be a different world, with a different set of problems. For example, foreign based piracy of American ships, with official deniability of host nations, might very well eliminate our shipping industry completely. Problems we see as non-existant in the current world, may very well become the norm with a libertarian America. Now mind you, I am a radical libertarian. But I say a lot more work on the libertarian philosophy is needed before we acquire any kind of electoral presence in American government.

I agree with you that we need to end foreign entanglements and we should not be protecting foreign governments. I also agree that we should not be protecting Americans abroad. But on this latter one, I do not know where the line should be currently drawn, at least not at this time.

So why then is this pledge/oath/vow/silly sentence so important that it appears in the membership application of most LP's?

It doesn't.

This is, quite simply, untrue, conterfactual, dissembling, a canard, a lie, or whatever other word you like to use for a deliberately false statement.

Let me tell you the LP's with which I've had personal affiliation: Utah, Wyoming, Colorado, New York, and Pennsylvania. All require this pledge as a precondition for voting membership. Furthermore, it is an absolute requirement of any state or local party the inclusion of which implies membership in the National LP--which is every LP I know of--because the National LP requires this pledge.

Here is the exact wording on the LP of PA's membership form:
4. Membership oath (MUST be signed, by NEW members only):
I hereby certify that I do not believe in or advocate the initiation of force or fraud as a means of achieving political or social goals.
x___________________________.
[Italics mine, emphasis in the original.] Look here, since you don't think this OATH is REQUIRED: LP of PA membership application.

In fine and in sum, this is what I object to about your post: you claimed I was wrong, but you have produced no evidence other than your own contradictory and silly hair-splitting statements to this effect. You seem to think you're talking to some ignorant authoritarian conservative who doesn't know anything about the LP, rather than someone who had been a member for almost 30 years. I know what I'm talking about. I've presented proof, and you have not. All that you've done is equivocate about the difference in meaning between "initiated force" and "aggression." There is none. You've quibbled about the fact that this pledge is not an oath; if giving your word means anything, it is the exactly same thing. If you have problems with this, take it up with Merriam Webster, not me:

Entry Word: promise
Function: noun
Text: a person's solemn declaration that he or she will do or not do something
Synonyms oath, pledge, troth, vow, word

In Pennsylvania where I had been a member since 1987, it is actually called an oath.

What I am angry about is a waste of several decades arguing with my friends that the LP was not a group of idiotic Utopians, stoners and kooks, but was indeed a principled party. The incineration of 3000 Americans on 9/11/2001 and the feckless and flaccid responses made by the LP, Cato, and many other Libertarian "thinkers" has convinced me that my Republican friends were right, and I was wrong. It was a bitter pill to swallow, indeed.

The only real hope for the advancement of libertarian principles is the Republican Party. The LP isn't willing to do more than write position papers. That's all very highbrow but it won't protect American liberty, or American lives.

I think that, barring a preemptive role as our country seems to have played in Iraq, the U.S. ought to stay out of foreign entanglements,

But the US role in Iraq was not preemptive, a point most people don't seem to understand. Iraq launched a war of aggression against Kuwait. In a response entirely justified by (L)libertarian principles, the United Nations Security Council authorized a defensive war to remove the aggressor from that country. Among many conditions set down by the United Nations Security Council--and agreed to by Iraq in order to affect a cease fire--was a complete transparency in Iraq's weapons programs and the enforcement of a restricted airspace over Northern and Southern Iraq. Iraq repeatedly refused to comply fully with the terms of this agreement. Offenses against these two aspects were the most egregious; there were others. The members of the UN Security Council agreed in one resolution after another over the course of ten years that Iraq was substantially in breach of the cease fire agreement. Consequently, the 1991 Gulf War never really ended. In Resolution 1441 the Security Council warned Iraq of the gravest consequences if it failed to comply. While the Bush Administration used the argument of weapons of mass destruction and the proximity of 9/11 as a justifying casus belli to the American people, under the terms of UN resolution 678, no such justification was required. Nor, contrary to the claims of some Security Council members, did the US need any further Security Council action to justify forced compliance.

Here are some of the earlier, relevant UN SC resolutions:

Resolution 660 in 1990: Call on Iraq to withdraw immediately and unconditionally all forces from Kuwait.

Resolution 678 in 1990: Authorizes member states to use all necessary means to uphold and implement resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area [Kuwait].

Resolution 687 in 1991: Decides that Iraq shall unconditionally accept the destruction [...] of [a]ll chemical and biological weapons [...] and all [...] ballistic missiles with a range greater than 150 kilometres.

I've taken some pains to document this because this is at the heart of my complaint with the "internationalists" in general, and the LP (which has joined the disreputable ranks of that group) in particular. If international law is to have any meaning, and if the principles of the LP are to be enforced, a muscular response is sometimes necessary. When that is lacking, it is an inducement to the commission of further crimes. This is why the LP pledge/oath/affirmation is only half a usable pledge. The second half, a vow not taken by any Libertarian I know of, is just as important: "When force is initiated as a means of achieving political or social goals, I pledge that I will never fail to respond."

The supposedly principled resistance to the use of force by France, China, Russia and a number of other SC members was nothing of the kind. They were pursuing their own interests without regard to the fact that by failing to enforce the Security Council's resolutions they were making a joke of UN, the Secuirty Council, and the rule of law. Far from being an shunned as an international pariah, George Bush should be exalted as the man who upheld the integrity of the UN.

I AM one of those Americans hobnobbing and doing business abroad. It is not a class issue. It is an issue of national sovereignty. While I don't have any truck with Americans who expect the same protections outside American borders they'd get in the U.S., what bothers me most about the American government is that it seems to think it's okay to leave the country with that expectation, and okay to intervene outside the U.S. when America wouldn't accept intervention in our internal politics to the same extent.

We're not talking about government envoys or embassies or the U.S. military, where it's invited. We're talking about private citizens. And piracy of American ships in territorial waters is different from piracy on the high seas or piracy in another country's waters.

Where America ought to draw the line about its obligations to protect private citizens is simple: America's federal government claims U.S. courts have legal jurisdiction there.

I think Americans leaving the U.S. ought to be forced to sign an acknowledgement that they are leaving American borders, realize that American laws don't apply where they're going, and understand that they are given a 80K a year tax break because they will not receive government services as a result. And American companies doing business outside the country ought to be allowed to do whatever they want, including bribe officials, topple governments and fight their own private wars--without the protection of the U.S. government's military umbrella. We think people ought to have the right to protect themselves in the U.S. No one gives up THAT fundamental right in or outside the country, yet, while the U.S. militarily protects some citizens and businesses, the U.S. takes those rights away from other citizens on their departure from American soil while doing nothing to protect them but issuing state department warnings, and harassing them on their return if they violate the international laws America abides by and few other countries do (see U.N., Oil for Food, see also Olympics, bribery, see additionally, International Business Practices, subheading kickbacks, graft, baksheesh, greaseman).

Better to say it and be honest about it than claim we practice what we preach and be caught out. Marcos, Batista, and other American-supported dictators have done far more damage to America's propagandizing about its hope for international democracy and freedom than Ho Chi Minh and Kim Jong Il ever did.

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