Liberals, Conservatives! There is Something for Everyone in Roberts’ New Rule!

What’s next? Congress may order you to buy a bicycle, an electric car, or a subscription to NPR. Or a gun, an American-made car, or corporate bonds of a weapons manufacturer!

I.

“Conservative” Chief Justice Roberts has interpreted the Constitution as giving unlimited power to Congress, as long as the statute is framed as a tax. Consider what Congress can now mandate that you purchase, as long as they attach a penalty that the Supreme Court can construe as a tax (and even if Congress and the President strenuously deny it is a tax).

First, for my liberal friends, who want healthy Americans, a clean environment, and a well-informed public, here are some mandatable purchases: a bicycle. An electric car. A subscription to NPR. Corporate bonds issued by government-certified recyclers or clean-energy producers, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. Compensation for carbon use above a certain minimum. Solar panels, or insulation, if one is a house-owner. This is merely suggestive, but none of these are so different from health insurance, or Social Security, for that matter, which is also built on the “taxing power” of Art I, Sect 8. In all these examples, a case can be made that the vast majority of Americans ought to purchase these things. Mandate them! Just as with health insurance, the penalty can be seen as “a tax on those without x.”

Happy, liberals? Well, don’t forget that government has a nasty habit of falling into conservative hands. Conservatives love to use the powers bequeathed them by prior administrations, just as liberals do. So expect that you may be ordered to buy: a weapon or weapons to defend your home, and an annual quota of ammunition (after all, it’s an American tradition, and target practice is needed: heck, this can fall under the militia power too). An American-made American flag, at least 8 feet by 12 feet. This will stimulate the economy. Hey, an AMERICAN-made car! (Or any American-made manufactured object we can still find.) War-bonds, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. These will support the war on terror, the war on poverty, and the government’s efforts to promote a “business-friendly ownership society.” Corporate bonds issued by government-certified weapons producers and security companies! After all, it is every American’s duty to help keep our country safe! The health freeloaders who go without insurance and then get the rest of us to pay for their heart operations are the same as, or worse than, the security freeloaders who refuse to pay any extra for the war on terror, but reap the benefits of working in peace and security, right? Perhaps you get the picture, my liberal friends?

And let’s not forget the ratchet effect: government programs don’t die because the “other” party gets into power—no, the “other party” simply enacts its favorite programs, and leaves the existing ones in place.

Now our debt will really soar—oh wait, this new power can be used to order all Americans to buy U.S. government debt! It will be a “tax on non-contributors to government debt.” Now we will really “owe it to ourselves!”

II.

But, this is a legitimate way to look at the Constitution, right? After all, somewhere the Constitution gives Congress the “power to tax.”

Let’s consider that argument. Here is the Constitution, Article I, Section 8, which begins “Congress shall have power…”

At the beginning of this section are the power to tax and to “provide for the common defence and general Welfare” and at the end is the “necessary and proper” clause. But do these give Congress power to do whatever it chooses?

No one thought so for over a century. Why not? Notice the list of “enumerated powers” in the middle here. Do these have any meaning? The very existence of a reasonably long list of powers strongly implies that they, and what is clearly implied in them, are the only powers “Congress shall have,” and the general language at the beginning and end is only meant to explain the enumerated powers. (Exception: a few other minor powers here and there explicit in other articles or sections.) Otherwise, the whole of Article I would read, “Congress shall have power to enact legislation for the common defence and general Welfare of the United States.” Period. If the Founders had meant by the preamble to grant this full power, there was no need to waste ink explaining what some and only some of the individual powers under that wider power were, and, it would confusingly suggest that the enumerated powers limit Congress. Of course, they were immediately seen and interpreted by everyone to limit Congress’ power—to themselves. Otherwise they are redundant, senseless, and completely misleading.

To support this, consider the Federalist Papers, written (mostly by Hamilton and Madison) to persuade New Yorkers to ratify the Constitution (they nearly failed).

Read no. 33, where Hamilton describes how the “necessary and proper” clause refers only to the “declared” powers, such as taxation. As with “all other powers declared in the Constitution” (emphasis added), this clause simply states, according to Hamilton, the laws “necessary and proper” may be passed “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution.” He continues, “And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” In other words, the “necessary and proper” clause, according to Hamilton, authorizes only laws to execute “powers declared in the Constitution.”

Now find Federalist Papers no. 41 in the link above, Madison’s “General View of the Powers Conferred by The Constitution.”  Here is Madison (in paragraph 21) on that introductory clause of Article I, Section 8: “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” That is the belief often urged today, right? Madison’s next sentence heaps scorn on the idea: “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” He spends the next three paragraphs dismantling this notion, and urging Americans not to worry that such an obviously false interpretation will ever prevail. Remember, this is how supporters of the Constitution presented it to the public.

Another piece of evidence that these articles limit the power of Congress to what they themselves clearly state, as far as the Constitution has always been understood, is the existence of the whole “commerce clause” jurisprudence: the attempt to tie this or that law to the power to “regulate commerce…among the several States.” If the Congress could simply say that it was legislating “for the general Welfare” it would never have needed to cite the Commerce Clause. Any law that failed to be supported by the Commerce Clause could have fallen back on the general Welfare clause.

Conclusion: since before the Constitution was ratified, it was understood that the powers of Congress were limited by the Constitution. But according to the Roberts’ decision, this is not the case: Congress can lay a penalty on any action and call it a tax. (And even the New York Times admits, with understatement: “To some extent, calling it a tax does break new ground. ‘Nobody here can think of an example where you pay a tax if you do not buy something,’ said Howard Gleckman, a resident fellow at the Tax Policy Center in Washington.) There are no limits on Congressional action. If this is correct, these enumerated powers have no meaning whatsoever. Any of them could be put into practice simply by passing a law directing them to be done, imposing a penalty in the case of inaction, and calling that penalty a tax. But this belief in the unlimited power of Congress to do anything it wants has been directly contradicted by every informed judge and reader of the Constitution until the early 20th century. It therefore cannot have been part of any original meaning of the Constitution. And therefore Roberts is clearly wrong. But worse, he has pushed vast new powers onto the plate of Congress. Even Social Security, even if Congress had no warrant in the Constitution to mandate the program, really was a tax: it said, if you have income, pay up. Period. This is an open-ended new power.

Do You Want a “Restrained” Umpire?

Ross Douthat, the New York Times house Catholic conservative, in his June 26 essay “The Liberal Embrace of Judicial Restraint” gets the matter of conservatives and the Constitution flat-out wrong, in an instructive way.

“For decades,” he begins, “the idea that judges should show more deference to the democratic process was the province of social conservatives and right-wing populists.”

But don’t conservatives revere the Founders? Douthat’s idea is the opposite of what Alexander Hamilton and James Madison wrote in the Federalist Papers. They did not want judges to show any “deference to the democratic process” at all! They wanted them instead to interpret the law, and, in case of conflict between a law passed by the legislature and the Constitution, to insist that the law was subordinate to the straightforward meaning of the latter document. As Hamilton wrote in the Federalist Papers no. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” As Madison wrote in Federalist Papers no. 41, “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” That is not at all the end of Madison’s scorn for those who misinterpret, in his view, the plain meaning of the text of the Constitution. (Note, in the context of this quotation, that he assumes that the normal rules of construction and interpretation of a text apply to that document.) Hamilton in particular is quite clear that it is often precisely in being willing to overturn the result of “the democratic process,” as embodied in an act of legislation, that the courts fulfill their role of insisting on the primacy of the Constitution among our laws.

Douthat continues, “…conservative intellectuals complained that the Court’s approach to abortion (or civil liberties, or religious expression, or criminal justice — the list was long) amounted to a kind of ‘judicial usurpation of politics.’”

The point of the complaint, if it meant anything, was that the judges were misinterpreting the Constitution to find rights that were not there, not that they were “active” per se; and, conversely, that they needed to interpret it correctly, not “be restrained.” Those who let Dred Scott and Plessy v. Ferguson stand showed great restraint, but restraint is not what conservatives should stand for—it is simply allowing what is there to remain. If what is there should not be there, “activism” is precisely what is called for.

Douthat goes on to confirm his misunderstanding through his use of the “umpire” metaphor:

“In the first five years of Roberts’ tenure, the justices overturned an average of 1.6 precedents and invalidated an average of 3 laws per term. By comparison, the Warren Court overturned 2.7 precedents and 7.9 laws per term; the Rehnquist Court overturned an average of 2.4 precedents and struck down an average of 8.2 laws. (Those numbers make Roberts’ famous confirmation-hearing promise to be an umpire rather than a player look more convincing than his critics have allowed.)”

Umpires are “active,” we might say, when they call a foul. After all, the “restrained” thing to do is to let play continue. Why “actively” interfere? But that is the point: umpires are there to enforce the rules. Comparing the number of fouls called by one umpire with another is absurd unless we compare it to the actual number of fouls committed. Do we want the game played according to the rules? Then we want all serious fouls called. (Yes, it is possible to call too many fouls, but only by calling those that do not really affect play.) Do we want our legislation to respect the Constitution? Then if legislation does not, and if it affects American life at all seriously, we want the Supreme Court to overturn it.

Douthat’s conclusion: “…when the next confirmation hearing comes around, left and right will share one premise in common – that judicial modesty is one of the best possible qualifications for a position that offers so much untrammeled power and brings so much temptation along with it.”

That’s like insisting on a “modest” umpire: one who doesn’t call too many fouls, serious or not.

Activism/shmactivism, restraint/shmaint. I want legitimate interpretation of the Constitution. If we can’t have that, let’s laugh at the charade and admit that what Madison and Hamilton sold us is 99 percent gone. But we conservatives don’t call for an “original meaning” interpretation very often—we would rather go along and get along, take turns running the show as it is—and really applying the original meaning would upset the whole apple cart: undeclared wars, the New Deal, the Great Society, Social Security, Medicare and Medicaid—most of what the Federal Government does is unconstitutional, and we know it. The cry of “constitutional” is cheap rhetoric with us, not something we really want. “Activism/restraint” is a meaningless diversion from the real issues.

Or, perhaps, is that the point?

Ron Paul: a Conservative Voter’s Guide, Part I

Paul’s rhetoric, moral stance, and foreign policy, rightly understood, are outstandingly conservative

Ron Paul is by far the most conservative candidate in the race. He would be a great moral leader for the United States of America.

While some of my conservative friends would agree with that statement, others would think it outrageous. While granting his pro-life stance and respect for the Constitution, they still object: “Why he is a libertarian, almost an anarchist! And as for moral leader, he may have a fine personal life, but the only thing he seems to value is liberty. He never mentions the role of religion in public life. He has no sense of order, no sense of the government’s role in promoting healthy families, or in promoting morality. On top of that, his foreign policy sounds like one of surrender, if not treason.”

Since Paul could probably use a few more conservative votes in the primaries coming up out there, and conservatives still seem a bit unsure who is the conservative candidate, the issue is important. There is a great answer to each of these typical conservative objections to Ron Paul’s candidacy. Since I myself am a kind of conservative (a very-small-and-limited-government conservative, what F. A. Hayek called an “unrepentant Old Whig — with the stress on the ‘old’”), it seems I ought to try to explain to fellow conservatives why Ron Paul is, perhaps surprisingly, their man. This essay focuses on the first set of objections, Paul’s “libertarianism” and his rhetoric of liberty rather than morality.

The Rhetoric of Conservatives and the Founders

Rhetoric first. Actually, much of Paul’s rhetoric sounds like Ronald Reagan’s. When we hear Paul saying “…the Constitution was written very precisely to restrain the power and force of government and to protect the liberties of each and every one of us,” that would hardly have been a strange sentiment for Ronald Reagan, who was rather famous for his own saying that “government is not the solution to our problem, government is the problem.”

But we can go a lot further back. James Madison, advocating for the new Constitution (of which he was the unofficial “father”) before it was ratified, wrote (in the Federalist Papers, no. 51) “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself…”

Even more concerned about government tyranny is Thomas Jefferson, chief drafter of the Declaration of Independence, but (as few remember) drafter also of the Kentucky Resolutions, which begin “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government…” And again, in his draft for those resolutions, “in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” If Ron Paul’s rhetoric of the dangers of even our own government and the importance of liberty sounds strange to our ears, maybe our acquaintance with the Founding Fathers needs some refreshing.

But there is another problem. There is no doubt that Paul’s rhetoric occasionally presumes a lot of knowledge of his positions, and some of his statements, taken out of context, appear to say things he does not mean as a candidate, because he sometimes assumes his listeners know the Constitution as well as he does. (No one is perfect.) We are beginning with Paul’s “libertarian” rhetoric, but to understand it we need to look into Paul’s core political position, which he is famous for actually meaning and living by. When we understand that, almost all of his rhetoric makes sense for conservative voters—I’ll deal with the part that doesn’t shortly.

Paul’s Political Bedrock: the Constitution

That core for Ron Paul is the Constitution, the bedrock of his political faith and message. Google “Ron Paul” and “Constitution” and one of dozens of things you find will be Paul saying (in the same speech quoted above) is, “I am an advocate, a very strong advocate, of following very strictly the rule of law: the Constitution of the United States…” All conservatives talk about the Constitution occasionally, and all conservatives reverence it, right? But when is the last time we actually looked at it? Why is it important?

The Limited List of Federal Powers

The Founders began the Constitution with Congress, since they considered law fundamental to a government that would lead to ordered liberty. The President and the executive branch execute the law, which in the Founders’ eyes came second, and the courts interpret it, which is third. Let’s take a quick look at the things Congress is authorized by the Constitution to do or regulate through the laws and resolutions it passes. The list is in Article I, Section 8. I have summarized these already short statements to make them easier to follow, but you can look them up on-line here. The quick summary statements below use numbers to make them easier to follow (some paper copies use these numbers):

1, 2: tax and borrow (if you don’t have money, you can’t spend it).

3: regulate commerce (foreign and interstate)

4: make rules for naturalization, bankruptcy

5: money (not paper), standardized weights and measures

6: punish counterfeiting

7: establish post offices

8: patents and copyrights

9: set up lower courts (under the Supreme)

10: deal with piracy

11: declare war, grant “letters of marque and reprisal,” “captures”

12: raise armies

13: set up a navy

14: make rules for military forces

15, 16: organize and prepare the militia, and “call [them] forth” when needed

17: run the District of Columbia (as it became known)

18: pass the laws necessary for the specifically listed powers to be executed

How to Misinterpret Plain English

That is the entire list of powers of Congress. Now, the champions of a “living Constitution,” which is supposed to “evolve” along with the people (which means being “amended” unofficially by judges, rather than interpreted and applied by judges and amended by the people as the document itself provides), make heavy weather of two phrases in this list, “provide for…the general welfare of the United States” (in the first power of Congress) and “all Laws…necessary and proper” (in the last). These are supposed to grant Congress unlimited power to legislate on any subject their hearts desire, as long as it relates in some way to our “general welfare.” This is in fact the standard wisdom we are fed, over and over, often in our schools, certainly in the mainstream media. But that is certainly not what the Constitution says, in context. The “necessary and proper” clause is part of the eighteenth “power,” which states, in full, “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 [emphasis added].” If you read what it actually says, it conveys no new power at all to Congress, only the power to execute the ones it is given in black and white.

In addition, many Americans were deeply concerned at the time of ratification, as is shown in the Anti-Federalist Papers, that the new Constitution would give the proposed federal government too much power. The people who finally voted to ratify the Constitution did so under the influence of the promises and explanations in works such as the Federalist Papers, which reassured them that the federal government’s powers would be strictly limited. (It is a bit bizarre to claim that what the people were told they were voting for, and thought they were voting for, doesn’t count!) In those essays, James Madison and Alexander Hamilton specifically denied that these very interpretations made any sense. On “the general welfare,” Madison notes, in Federalist Papers no. 41, “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” That is merely the beginning of Madison’s scorn and mockery for such an interpretation, which goes on for several long paragraphs. He makes his own view clear: this is merely a phrase describing the specific powers that follow, and no other interpretation makes sense at all. On “necessary and proper,” Hamilton, in Federalist Papers no. 33, is nearly as scathing: “But the same process [of thinking through the meaning of the power to tax] will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless [italics added, capital letters in original].”

Re-Reading the List of Federal Powers

Granted that the original ratifiers, the people of the various states, believed they were granting only these powers (and a handful of other minor powers in a few other places in the Constitution itself, e.g. Article III) to Congress. Still, these powers are not exactly organized the way we might do it today. To make our lives easier, let’s look at them again, grouped into “enabling,” “foreign policy,” and “domestic” (If it is a combination, that is indicated):

Enabling:

1, 2: tax and borrow (if you don’t have money, you can’t spend it, so you can’t do anything)

18: pass the laws necessary for the specifically listed powers to be executed

Foreign Policy:

3: regulate commerce (also a domestic power if interstate commerce)

10: deal with piracy

11: declare war, grant “letters of marque and reprisal,” “captures”

12: raise armies

13: set up a navy

14: make rules for military forces

15, 16: organize and prepare the militia, and “call [them] forth” “to repel invasions” (also domestic if used to “execute the laws” or “suppress insurrections”)

Domestic:

3: regulate interstate commerce

4: make rules for naturalization, bankruptcy

5: money (not paper), standardized weights and measures

6: punish counterfeiting

7: establish post offices

8: patents and copyrights

9: set up lower courts

15, 16: organize and prepare the militia, and “call [them] forth” if needed to “execute the laws” or “suppress insurrections”

17: run the District of Columbia

Take a second, long look at that domestic list, please! What kind of federal government did the Founders give us? When a woman put that question to Benjamin Franklin, he famously replied, “A republic, if you can keep it.” But what kind of Republic? Well, as Madison wrote in the Federalist Papers, no. 63, it was to be “a confederated Republic” (In the first 14 of the 85 Federalist Papers I gave up counting variations on the word “confederate” at 72—many of these are warnings against the establishment of four or five confederacies in place of the one union of the thirteen United States at the time, but most of the other uses of the word are completely positive). Hamilton wrote that the new Constitution created a “confederate republic” of the United States. He defined that in Federalist Papers no. 9 as “an assemblage of societies, or an association of two or more states into one state.” These other “states” were to remain in existence (and the word “state” certainly did not mean “an administrative sub-unit of a country” in 1787). In the design, there was to be a federal government that was to do just a handful of quite minor jobs on the domestic front. Almost all “government” would be done by the states. In a famous passage in no. 45, Madison gave a general description of the role of the federal government and the role of the states under the proposed Constitution:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

For at least 40 years or so (and to some extent for far longer), this is a reasonably good description of how the federal government actually operated. The federal government did almost nothing domestically! It actually followed, for the most part, the short list in Article I, Section 8. Alexis de Tocqueville came to the United States from France in 1831 to see how Democracy in America (the title of his eventual book) actually worked: his own parents had barely escaped the guillotine in the French Revolution, so he wanted to see democracy in action where it had done a better job. De Tocqueville found much to praise in American society and government, although he saw some dangers as well. He was concerned about a possible “tyranny of the majority,” but he discussed in Volume I, Chapter XVI some factors in the American system that helped avoid such tyranny. One factor he mentioned in a section heading:  “Absence Of Centralized Administration.” Can we imagine an observer writing that about the United States today? He went on, “In the American republics [i.e. the states] the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of even interfering in them.” That was the original design, and it was in force! If the central government began to regulate those “secondary affairs of society,” de Tocqueville feared, “freedom would soon be banished from the New World.”

Q: Why Does Paul Sound Libertarian? A: the Constitution.

The constitutional design of the United States government is the key to understanding how Paul’s rhetoric fits his vision of government, and why the conservative complaints noted above don’t really fit. You can’t say the Constitution prescribes a “libertarian” approach to government in general, since it says almost nothing about the government of the states, beyond forbidding them a handful of powers (and in the Tenth Amendment, noting that state powers not delegated to the federal government were “reserved” by them)—and that is the government that touches the ordinary lives of citizens, in the constitutional design. On the other hand, it certainly does prescribe a rather libertarian vision (in the sense that government should be limited to protecting rights) for the federal government. According to one conservative objection linked to at the beginning of this essay, “Paul’s opposition to moral legislation betrays his failure to appreciate the government’s divine mandate to punish evil and praise good.” But this misunderstands the original plan for our federal government, which the author praised earlier in his article. Since the President of the United States has very little to do with the ordinary lives of Americans under the Constitution, it is actually not vital for him to talk about the role of religion in public life, the importance of order, the government’s role in promoting healthy families, or the promotion of morality. As President, he should have nothing to do with those things. In the Founders’ design, which the American people ratified state by state, all the moral legislation that punishes evil and praises good, including legislation about marriage and murder and so forth, belongs at the state or local level. Therefore, Paul’s lack of interest in such legislation at the federal level should not be a mark against him, but a reason to praise him. The federal government’s “few and defined” powers have to do almost exclusively with money, commerce, and a few miscellaneous minor issues. Paul has worked as a Congressman in and is a candidate to be the head of the federal government, not the government of one of the states. If conservatives want their government to address these other issues, then according to the Constitution they need to demand such rhetoric and such action from state, not federal, officials. If they demand such rhetoric and action from the federal government, after actually reading the Constitution, that is hypocrisy at a very profound level. What kind of moral vision of government is built on hypocrisy? (And trying to amend the Constitution to allow this kind of expansive federal power would be, politically, surrender to the Democratic Party, as well as a denial of decades of Republican rhetoric.)

Paul the Conservative

Paul sometimes talks about “the government” not interfering with the use of drugs or the drinking of raw milk or the definition of marriage, usually as a shorthand reference to “the federal government.” Most of us speak like this at times. At other times, he uses the clearer expression “the federal government.” On marriage, by the way, Paul had this to say on the floor of the House, in explanation of his opposition to an amendment to the Constitution defining marriage:

If I were in Congress in 1996, I would have voted for the Defense of Marriage Act, which used Congress’s constitutional authority to define what official state documents other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a “same sex” marriage license issued in another state. This Congress, I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts’ jurisdiction. If I were a member of the Texas legislature, I would do all I could to oppose any attempt by rogue judges to impose a new definition of marriage on the people of my state.

What is the “Full Faith and Credit” clause? Article IV, Section 1 of the Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” So Paul was looking for a way to prevent “rogue judges,” in say, California or New York, defining marriage for the people of Texas. Sounds pretty conservative! (And since the Constitution gives Congress no power to regulate marriage, it is a state issue.)

On the question of drugs, while Paul sometimes urges Americans not to fight a war on drugs at all (the libertarian position), at other times he clearly states that he is campaigning for a position in the federal government, and his actions as president would not affect the states (the classic conservative position)—but you have to be listening closely or it will slip right by you. He expressed both positions in the May 6 debate among Republican candidates in South Carolina last year, after the moderator said to Paul: “Congressman Paul, you say that the federal government should stay out of people’s personal habits. You say marijuana, cocaine, even heroin, should be legal if states want to permit it. You feel the same about prostitution and gay marriage.  Question, sir: why should social conservatives in South Carolina vote for you for President?”

In the first part of his answer, Paul made a libertarian argument against all drug regulation by government, at all levels:

“[Social conservatives] will [support me] if they understand my defense of liberty is the defense of their right to practice their religion and say their prayers where they want and practice their life.” We have to “protect liberty across the board,” without “inconsistency.” “If not, you’re going to end up with government that’s going to tell us what we can eat, and drink, and whatever.” But liberty is combined in Paul’s mind with personal responsibility, not libertinism: “How many people here would use heroin if it was legal? I’ll bet nobody [here] would put their hand up. ‘Oh yeah, I need the government to take care of me. I don’t want to use heroin, so I need these laws.’”

Then, in a very brief way (he was under time pressure), Paul also hinted at but did not develop his core position concerning just about all political questions in the United States: let’s follow the Constitution. Responding to the words “federal government” in the question, he answered, “if I leave it to the states, it’s going to be up to the states.” At the end of this more recent interview (well worth watching), Paul is asked again about his position on drug laws and the war on drugs. He objects to the wording of the question, because it implies that he is campaigning to abolish all drug laws rather than just most federal drug laws. He points out that the “federal war on drugs” is an innovation in our history (although problem drugs are quite old), and if given time would surely have pointed out that the Constitution does not give the federal government any power to legislate on the topic—even if, at the same time, it says nothing to forbid the states doing so: “[My position is] not exactly as you cite it…We have not had a federal war on drugs [throughout] our entire history. But just to say it’s legalized is not the case. I take a Constitutional [position]…”

Will Ron Paul Force Legal Drugs, Gay Marriage, and Raw Milk on the States?

Here is the sticky part. I absolutely love Ron Paul, but I think even his biggest supporters admit that, as often happens with strong people, his strength is in some way also his weakness. Paul’s particular strength/weakness is an inability to be anything but totally sincere at all times. It’s why so many respect him (he is the un-politician), but it is also why he rushes in to give sincere answers to the toughest possible questions, where most speakers would find a simple way to duck, so as to avoid giving a negative sound-bite to their enemies. An example was his answer when asked if he would have taken the United States to war to stop the Holocaust. Of course, the U.S. was heavily involved in World War II for several years before major newspapers began to publish stories on the Holocaust, and initial reports in the early 1940s were not believed. We did not go to war to stop the Holocaust. The U.S. was already fighting against Hitler’s forces, and would have continued doing so without these reports. Perhaps shockingly, the Allies never tried to bomb the trains to the death camps. There is also an argument made by many conservatives that if the U.S. had stayed out of WWI, the rise of Hitler and thus WWII would have been very unlikely. But although we went to war, we didn’t even slow down the Holocaust. All that was surely in Paul’s mind. He could have answered, consistently with all his stated positions, that if Congress had decided to declare war to stop the Holocaust, he would have led the nation to war. This would surely be one of those instances (I think they are rather rare, and must be weighed very carefully indeed) where a war that is not strictly defensive is just, and if Paul were facing these actual circumstances, I find it inconceivable that he would not have done his best to try to stop it, including leading the country to war: through Constitutional means, of course. Or he could have said it was a hypothetical question, and that generally he believes only in defensive wars. But he gave his enemies an honest sound-bite to beat him with, based on a very abstract rule.

Similarly, Paul gives an honest answer about what he thinks on drugs and other issues, even if it hurts his campaign, and even though he is not campaigning to end all such laws. Based on Paul’s consistent vision of the Constitution over the decades, it is clear he would do absolutely nothing as President to stop a single state from regulating drugs, marriage, raw milk, or any such issue. President Paul would get rid of all raw milk regulation at the federal level, but if California then denied raw milk to its citizens with a state law, that would be a battle for the people of California to fight. President Paul would presumably encourage the raw milk drinkers in speeches, but he would not exert an ounce of actual power to “increase the freedom” of Californians on that front—it isn’t in the U.S. Constitution. Californians, and citizens of every other state, would have to decide for themselves how much or how little regulation they wanted at the state level. The same would go for marriage and drugs. President Paul would abolish or not enforce the unconstitutional federal regulation, but he would leave state laws alone—because the Constitution gives him no power to overturn or override them.

So why doesn’t he say so more clearly and more often, since it would help win over many conservative voters? He does, sometimes, by throwing in the word “federal.” But often Paul simply opens his sincere and honest mouth and says that “government” should not be involved in such things, and he clearly means at all levels. He is, in some ways, an old school conservative, as pointed out just above, but he is also, in some ways, a libertarian, in the sense of wanting to allow enormous freedom. Now, strictly speaking, his views on what the states should say about marriage and drugs are completely irrelevant to his campaign: as a strict Constitutionalist in the White House, Paul would obviously respect the choices of the different states, whatever he thought about them. He could have reminded us of this far more clearly, and more often. I think one of the reasons he doesn’t is his assumption that many Americans have read and understood the Constitution. Many have, but tens of millions haven’t, and they don’t understand his brief references to a “Constitutional position.” Much of what we learn about the Constitution in school is nonsense. I have conservative friends who understand all this. One wrote to me recently saying that if Paul were running for governor of his state, he wouldn’t vote for him, but that he would make a great (accidentally) conservative president. And he would make a great conservative president, but he is not helping his friends to help make that case.

A Plea to Ron Paul and His Campaign

If Paul or his campaign people are reading, this is a plea: explain the Constitutional limits, and say clearly “as President, I would not attempt to impose my personal views on the states, because the Constitution gives the federal government limited powers. Each state has its own constitution that the federal government cannot override. I am not campaigning to overturn a single state law, on drugs, or marriage, or raw milk, or anything else, only the unconstitutional federal laws about those things.” Say it a few times, in front of cameras. Put it in some ads. Some of us know Ron is saying it, in a kind of quick shorthand, as an afterthought because he thinks we all get it. Many of us don’t. It might reassure many conservatives. (Why not a brief statement on the campaign page, under “the issues,” for each of these topics?)

Back to the Blueprint: a Revolutionary Return

Since we have gotten so far from the original design, and since the Constitution is “the supreme [human] Law of the Land” (Article VI), two things follow: First, there is no possibility of “morality in government” at the federal level unless the government itself begins to follow “the supreme (human) Law” of the nation: how can government officials punish those who break the laws Congress passes, when those very laws break a higher law of the country? What kind of moral and legal example is that? And yet, do any of the other Republican candidates show any sign of really wanting to try to return to the Constitution, not just on a few pet issues, but as the supreme human law of the land that is truly to be followed? Certainly not. They are clearly willing to “swear to uphold” the Constitution. They will surely mention it in campaign letters—Rick Santorum promises in one to “restore sanity to our judicial system by appointing judges who won't re-write the Constitution every chance they get.” Then they will get on with business as usual—except for one or two favorite projects, perhaps. Their entire careers until now show this—and being naïve is not a conservative virtue. So how can they possibly set the moral example conservatives want to see? How can they urge us to see the proper relation between the government and any part of our lives when they wish to ignore the supreme law of the land on most major government issues?

Second, the most urgent need of the federal government is to return to legality, which means depriving the federal government of most of its current powers and ending most of its current domestic activities—in a measured way that does no harm to those who have built their lives around federal promises, such as Social Security. This is the approach Paul proposes. If there is a balance between government power and liberty, then clearly according to our own Constitution we have swung far indeed onto the side of government power at the federal level, and anyone wishing to restore the original balance will have to spend most of his time talking about and promoting liberty and the restriction of the powers of the federal government.

Imagine a politician who actually meant his oath to “preserve, protect and defend the Constitution of the United States.” How much would such an elected President have to dismantle of the existing federal government! That is Ron Paul’s vision, the vision of a man even his enemies admit is sincere, thoughtful, and one who really acts on his principles. And that is the true measure of the difference between him and all the other Republican candidates. Paul would be in a hurry to get back to that very short list in Article I, Section 8! No one else even talks about it seriously. That is one reason that at least some of us Paul supporters think of him as the only real conservative in the running.

Don’t Be a Slavish Literalist!

One objection needs to be considered: Paul’s call for a return to the Constitution could look to some like a slavishly literal interpretation of that document. First, the people who offer this criticism are often pretty vague about what a non-slavish interpretation should look like, and we should ask them what they mean. But avoiding that question for the moment, what would an example of rigid, slavishly literal interpretation be? Say if Ron Paul said that in the time of the Constitution, “interstate commerce” consisted of animal-drawn wagons and barges, or sailing ships, so therefore the laws regulating commerce using airplanes and trucks and the internet were unconstitutional. Now that would be a rigid adherence to the letter of the law. That would be the kind of thing such warnings legitimately urge us to avoid. Instead, Paul clearly sees that that clause of the Constitution grants power to the federal government (if it wishes to exercise it) to regulate all kinds of commerce between the states, including kinds that were unimaginable to the Founders. This objection doesn’t seem to have any force.

But the World is More Complicated Now!

A second objection: we live in a far more complicated world than in 1787 or 1831, therefore we must have a more centralized government. The federal government began to do what it does because these things were needed, and the states could not do them for themselves. First of all, this is just not true: none of the states was or is so small it could not deal with such issues. There is no technical reason the federal government could not stick to its short list of powers, dealing with them in new ways in our more complicated world but staying within the boundaries they establish. Second, the Constitution was not amended to allow the federal government to concern itself with education or drugs or social security or health. In our fundamental law, the short list of federal powers is still “on the books.” If we ignore it rather than amend it, we have in effect tossed out the rule of law, a very serious thing indeed. Third, conservatives still talk about subsidiarity, the old political principle that teaches that “a larger and greater body should not exercise functions which can be carried out efficiently by one smaller and lesser … a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.” The governing from one central spot of 310 million people is just impossible, as well as wrong, except through a great deal of decentralization that pushes the day-to-day questions of governance, and almost all of its details, down to a lower level. The states are still capable of dealing with these issues, despite the greater complexity of the world. In fact, many of these complex issues regulate themselves, through voluntary interaction of people, and in the marketplace, where sellers compete to offer buyers what they want, and try to avoid making or selling dangerous products that allow them to be sued or to go bankrupt. This is another old conservative insight.

He Can’t Do it Without Congress

Let us consider a final objection, a recent Jonah Goldberg argument against Paul. Goldberg warns that we shouldn’t trust Ron Paul’s “naïve promises” because he would need Congress to approve many of his plans, such as abolishing five federal government departments. Hmmm—like most promises by every Presidential candidate, ever? I guess we shouldn’t listen to Romney, or Bachmann, or Gingrich, or Perry, or any of them, because whatever they promise to try to do, after all, they can’t do it—unless Congress agrees. A bit obvious, that. (Has Jonah been warning us against the “naïve pro-life promises” of leading Republicans, like Reagan and Bush and Bush, for example, for the last few decades? Because that is the kind of thing this argument implies.) Of course, whoever is elected, members of Congress will quite possibly “change their minds” and go along with a great deal of what he asks for, because they will see it as the will of the people. That is one reason for legitimate campaign promises—they are an attempt to persuade the voters what direction the government needs to take, and the winning candidate can claim to speak for the people. (I guess we can call that “democracy.”) By running on his platform of a return to the Constitution, Paul is proposing to the voters that we—return to the Constitution. If they vote for him, then at least to some extent they agree. (But let’s not forget, in addition, what the President can constitutionally do without any authorization from Congress or the courts: undo prior presidential mischief.)

Should a Conservative Vote for a Conservative/Libertarian?

In his heart, is Paul actually a libertarian, and not a conservative? First, the word “libertarian” is as capable of different meanings as is “conservative.” One kind of libertarian (the kind attacked in a famous essay by Russell Kirk) believes in no morality at all, and therefore wants government out of the business of defining and punishing morality. Another kind believes in morality, but believes the government should have zero role in enforcing it. But for others, such as Hayek (who seemed to agree that he was some kind of “libertarian” without liking the label much, even though he calls James Madison one of his American political heroes), there is in fact a strictly limited role for government, and to some extent that role is connected with moral issues. Paul has made it abundantly clear in his life, especially with his devotion to the Constitution, that he is this latter kind of libertarian. Russell Kirk, in that same essay, contrasts libertarians with conservatives who, he says, are marked by a belief in “an enduring moral order, the Constitution of the United States, free enterprise, and old American ways of life,” which sounds like Ron Paul on the stump. In fact, Kirk says, if someone calling himself a libertarian believes in these things, “why, he is actually a conservative…” By Kirk’s definition, Paul seems to be more of a conservative than a libertarian.

But let us agree that in some ways Paul is a libertarian, going so far as to believe that ideally not even the states should regulate marriage or drug use, as he has openly said. I would argue that even if that is the case, the best strategic, practical decision traditional conservatives can make this year is to vote for Ron Paul. Why? First, even if he is this kind of libertarian, this will come out in his governing as a refusal to impose his ideas on the states, leaving conservatives free to attempt to persuade their fellow Americans at the state level on any of these issues. Paul’s whole constitutional philosophy assures us of this. Second, Paul has the only pro-life agenda that might be realistic in the short term: push the issue back to the states. As I discussed here (and there is another great article here), Paul has consistently called for Congress to exercise its power, granted in Article III, Section 2 of the Constitution, to exclude the Supreme Court from appellate jurisdiction on the issue, moving it right back to where it was in January 1973, with the states). Third, his whole life shows he respects the limits on the federal government imposed by the Constitution, and while that is a core conservative value, no other Republican comes close. Therefore, a vote in favor of Ron Paul would mean four years of relentless assault on unconstitutional big government—far more than Reagan actually waged. None of the other candidates can realistically promise this (certainly not Romney or Gingrich the Freddie Mac consultant or Santorum, big government champions for years). Paul’s cuts and abolition of departments would set a new mark for future presidents, and might just hold. Future conservatives might really start to care about the Constitution, and take Paul’s presidency as a new standard. And finally, no lasting damage would be done to conservative ideas: there appear to be more conservatives than libertarians in America, and there would probably continue to be after a Paul presidency. There don’t appear to be many Ron Pauls around anyway. Are conservatives really afraid that their people will start turning into libertarians?

Conclusion

Lots of libertarians will vote for Ron Paul, because decreasing the power of the federal government is a step in the direction of greater liberty. A number of liberals will vote for him because he actually means to end our “foreign [military] entanglements.” However, let’s remember that when Ron Paul states, “I am an advocate, a very strong advocate, of following very strictly the rule of law: the Constitution of the United States…the Constitution was written very precisely to restrain the power and force of government and to protect the liberties of each and every one of us,” he sounds like a Reaganite conservative. That is because Reagan sounded like Madison and Jefferson when they warned about the dangers of unchecked government power, and when they helped design a system with a small, limited central government with powers “few and defined.” These patriotic Americans, and many more, considered an unchecked federal government the worst danger to the liberties the Founders fought for in the American Revolution. Since most of what that government now does is far beyond what the Constitution authorizes, the first priority on the federal level of a conservative who believes what those luminaries wrote is to reduce the federal government to its proper functions: something Madison and Jefferson insisted was vital to preserving our liberty. Only a kind of peaceful revolution can get the Constitution back as the real blueprint of our government. The rhetoric (and real planning) of a conservative who really wants that has to sound like that of Ron Paul. None of the other candidates even comes close.

(To be continued. Next: a moral leader)

Maybe I Need a New Doc

Yeah, I’ve been feeling under the weather for a while now. A couple of years, actually. Tired a lot, I’ve gained a lot of weight, and, well, maybe I’ve hit the bottle a bit more than I should—but only when I need to relax.

When I started to feel bad, I switched docs. I had been going to that Dr. Dub guy for, oh, eight years or so. What a fun doctor at first—“when you feel low blood sugar, have a quick candy bar, or maybe a quick cheeseburger. If you’re tense or need to relax, have a beer or two! Or four or five, it’s OK! Always take care of your needs—you’re the greatest!” He told me the fights were good for me, too. It was a lot of fun for a while, but toward the end I started to miss work a lot—and I wasn’t feeling so great in the mornings.

I switched to Dr. Brock. He had a different philosophy, and he’s real eloquent. He told me after eight years of Dub, I was in bad shape, and he was going to have to work with me pretty intensely. I needed a lot of help. He put me on some really strong drugs. But really, they haven’t made me feel all that much better, and it’s been three years now. I put on even more weight, and I’ve missed more work. Dr. Brock says I need to stay on those drugs because of my eight years of bad treatment by Dub, but soon the medicine will start to really put me on the mend, and I’ll be back working out and feeling great.

I don’t know, I’m starting to have my doubts. I’ve been shopping around for a possible new doc. Dr. Mite comes highly recommended. A lot of people say he is better than Dub or Brock. He seems very technically skilled—and he looks like the doc from General Hospital, and he has that great bedside manner. Some people say he’s not much different from Dub, though. Then there’s Dr. Newtie. He seems to have an awful lot of great theories. In fact, every time I see him he has a new theory. He even says that is part of what works for his patients—he is always shifting the treatment, trying something new, being creative. He makes me a bit uneasy, somehow. For a while I was thinking about going to this lady faith healer, Dr. Mish, but after a while I wasn’t so sure about her either. Then there was Dub’s younger brother, Rub—but everyone said he froze one day for about an hour trying to remember what medicine he was prescribing. He never could remember. That put me off a bit. Anyway, these guys all say my big problem is Dr. Brock, but I’m not sure they’re that much different from him, really. Just different drugs, different doses.

Then there’s Dr. Run. He’s like a broken record, but lately I’m wondering. He says I need to stop all the drugs, cut way, way back on the booze, and even stop driving around in the golf cart. I need to start walking, and stop getting into fights, too. He says it will feel bad for a while, but the problem is really all the drugs and booze and bad food I’ve been getting, it’s confused my body and mind. I need freedom, he says—from medicine and all the other things I’ve been having too much of. He even says the medicine is making me sick!

That seems pretty radical. A lot of people call him a kook. On the other hand, I used to see all these other guys from time to time back when Dub was treating me. All Brock used to say was, I was doing OK, but I wasn’t really as healthy as I could be. I needed stronger medicine, and he could get it for me. He would put me on a different workout, too. I didn’t want to hear that, I felt great! I was partying all the time, and if I got in a fight, I always won it. It felt good! When I ran into Mish or Mite or Newtie, it was always, “look at you, you look great! That Dub must be doing wonders for you! If he ever moves out of town, though, I’d love to be your doc!” But I saw Dr. Run in town too sometimes, and he was completely different—“you don’t look healthy, Sam,” he’d say. “You’ve gained weight, your complexion is awful, you’ve got all those bruises. The drugs, the booze, the fast food, the bar fights—you’re feeling good now, but it’s all going to hit you at once, one of these days. The way you’re living is not good for you—if you don’t change, you’ll pay.” I used to just laugh. But sure enough, a few years later it all hit me—he’s the only one who told me it would. He’s really old fashioned, but kind of radical at the same time. You go to a doc like that, it’s a commitment. Your friends think you’re crazy. You know? I mean, everyone agrees he’s a quack who knows nothing about medicine. Pretty spry old guy though, always riding around on his bike, good weather or bad. Maybe he does know something. I’m afraid, with any of the others, it will just be more of the same.


(Note: this post originally ran here on Lew Rockwell.com, on December 20, 2011: http://www.lewrockwell.com/orig2/c-white7.1.1.html)

America’s Wars: A Christian Voter’s Guide

What Just War Theory Can Tell Us

America is at war, in many faraway lands. By normal definitions, we are now at war in Afghanistan, Iraq (until the troops leave), Libya, Somalia, Yemen, Pakistan, and somewhere in Central Africa, at least. Perhaps we simply accept that as part of our lives. We are grateful for our soldiers’ sacrifices. But the wars go on. Iran and Syria, perhaps, will be the next arenas of American war—who would be shocked?

What if some of our wars are morally wrong? Sinful, to put it another way? No signed certificate from God tells us that is never the case for the United States. Even biblical heroes singled out by God for special service, such as Abraham, David, Peter, and Paul, fell into sin at times, so our country certainly could. If some of our wars are indeed wrong, thoughtless support or careless indifference would involve us, as citizens, in moral guilt. Going to war is a heavy responsibility for a country and its voting citizens, even if war does not touch most of us personally. It is the gravest decision a nation faces outside its borders. In the Christian tradition, killing human beings is an incredibly serious act. Can we do more than pray about whether our leaders are right? Yes, we can. If we have a solid idea about what makes a war right, then we can apply that idea to our nation’s proposed and existing wars, and to our voting. We can then back what is right, and resist what is wrong.

There are some competing ideas out there. The choice for Christians generally boils down to harsh realism, just war theory, or pacifism. Harsh realism means our interests outweigh concerns about right and wrong—but that is blindness to our own moral status as creatures capable of going wrong. Pacifism means all our wars are wrong by definition—but that does not do justice to our sense that some things are worth fighting for. I discovered just war theory as an Arabic-speaking American diplomat with almost 15 years of experience in the Middle East. As I applied the theory with great care to the U.S. war in Iraq, it became more and more clear to me that it answers the questions about war in a way that avoids the pitfalls of realism and pacifism—and that it is almost unknown to us. I will give a brief explanation of the theory, and to demonstrate its value, I will show how it should have been applied to our recent actions in Libya.

An ancient theory with classical and medieval Christian roots, just war theory is famous lately despite being unknown. President Bush’s speech announcing the start of the Iraq war in 2003 was heavily influenced by it. President Obama mentioned just war theory in his Nobel Peace Prize acceptance speech in December 2009, and claims to be guided by it. Prominent evangelicals such as Chuck Colson, as well as many prominent Catholic commentators, including George Weigel and Father Richard John Neuhaus (RIP), stated that the war in Iraq was just according to just war theory. Some have added that since an important part of the theory revolves around choices guided by prudence, only the political figures involved are qualified to judge whether a war is just. So mainstream politicians of both parties have used just war theory to certify the justice of our current wars, and well-known theologians, Catholic and Protestant, agree. Many of these theologians tell us, too, that it is not really our business as simple citizens to decide whether any particular war is just. So does just war theory either bless our current wars or tell us ordinary people to butt out? No. Sadly, much of this talk about just war theory abuses rather than honors it.

Thomas Aquinas was, for all Catholics and many Protestants and Orthodox, one of the greatest Christian teachers and thinkers ever. Aquinas first put the just war criteria into what was in effect one short article, which begins “in order for a war to be just, three things are necessary:” the authority of the ruler, a just cause, and a right intention that includes “the aim of peace.” Later writers added three additional “prudential” qualifications for a just war: proportionality of ends, reasonable chance of success, and last resort. These prudential criteria can be found in Aquinas’ thought on other moral uses of force, so it is appropriate to include them for war (as discussed in some detail here). The Catholic Catechism, which rephrases these criteria, says these “strict conditions…require rigorous consideration,” adding that they should be all be met, “at one and the same time.” Notice that this theory is not part of the Manichean world of our popular imagination, where we are basically Good and the other side is pretty much just Evil, so “whatever it takes” is fine. No, we are in the world of Alexander Solzhenitsyn, who wrote that lying on his rotting prison straw in the Gulag, he realized that “the line separating good and evil passes not through states, nor between classes, nor between political parties either—but right through every human heart.” (Chuck Colson loves this line, and deserves credit for popularizing it among evangelical Christians.) We are not completely good, yet it matters that we try to do good—and when we use force, we must use extreme care, or we are likely to slip into doing evil ourselves.

Note that in a completely defensive war, we could simply defend ourselves according to just war theory, unless we were being justly attacked. The aim of preserving a decent country that was not guilty of some grave offense from attack is enough justification, just as in the case of personal self-defense, which Aquinas strongly approves. It seems the just war criteria come into play the instant a country wishes to go beyond simple defense against invasion.

Let’s apply the just war criteria to our war in Libya, as just one example. Libya was certainly not attacking us, so we need to apply the criteria. Many writers start with “just cause,” but although there is nothing wrong with this, it can be a trap. We Americans tend to see “just cause” as the only important question, so we often stop after considering it. However, since all six criteria need to be met, at least substantially, for a war to be just, we have to consider all the criteria before reaching a “just” verdict. We can start anywhere we like. If we aren’t convinced on any of the criteria, we should stop, and refuse to support the war.

I am struck first by the fact that the last four of the criteria, because of the “aim of peace” included in “right intention,” all require a detailed idea of “success.” That idea must always include more than “getting rid of a tyrant.” Getting rid of a tyrant such as Saddam or Qaddhafi might or might not lay a foundation for peace, but it doesn’t achieve peace. Surely everyone who has ever thought seriously about Iraq can agree on that! In order to go to war with “the aim of peace,” we must realistically define “success” in terms of a stable, better, peaceful outcome that we hope to achieve. After all, if you don’t really know what you are trying to accomplish, you cannot say if you have succeeded. Success in ordinary life needs a definition: when you go to college you want to get a bachelor’s degree and some real education; when you get married you want to achieve a life of love and sharing that doesn’t crash and burn, when you start a business you want to be able to sell a specific product or service and turn a profit for some years, and so forth. In terms of these examples, “getting rid of the tyrant” is like getting into college, or getting married, or making your first sale—it is just a condition of success (a “necessary but not sufficient” condition). No one who has not publicly defined “success” in some detail in terms of a hoped-for, peaceful outcome can credibly claim to have met a single one of the last four criteria.

“Right intention” means we, and especially our leaders, truly desire that outcome of a new, stable, peaceful situation that we have defined as carefully as we can, and are taking the concrete steps needed to achieve it. “Proportionality of ends” means the damage we are likely to cause with a war we are starting (which will continue until success is achieved), long term as well as short, will not be worse than the damage the tyrant is causing. That means calculations, which ought to be public. “Reasonable chance of success” means, as in going to college or getting married or starting a business, that you have the qualifications to achieve your aim, you have made serious plans to do so, and you are likely to achieve it—not perfectly, but substantially. You are not likely to flunk out or get a divorce or go broke in a few months, with all the harm those things will cause to others (and war causes far more harm). This “reasonable chance” should be demonstrated with realistic plans, which build on the definition of success. “Last resort” means that you have carefully considered how to achieve your aim (your defined “success”), and only war will achieve it. Because war is a grave choice that always involves the death of at least some innocent human beings, it is never an option if there is another way to achieve the desired and just aim.

To repeat, each of these criteria requires a detailed description of “success” and a credible showing of how the criterion will be met.

Did anyone see any of these calculations being discussed in public in the United States before we started fighting in Libya? Did anyone see a detailed definition of “success” that went beyond getting rid of Qaddhafi—not just a vague hope for democracy but a realistic plan for getting a new and better government? Did anyone see a discussion of the damage the fighting was likely to cause, or the likelihood of a better ruler arising after Qaddhafi was gone, or even the likelihood that the rebels could agree on one of their number to be the ruler, in light of the absence of any Western-style democratic tradition in Libya, a largely tribal society? Did anyone see serious estimates of Qaddhafi’s death toll over the years, carefully considered to see if they were reliable rather than someone’s propaganda, compared to the likely deaths in a civil war? Or a discussion of the fact that many Libyans backed Qaddhafi (often on a tribal basis), and actually felt represented by him as a leader? Of the possibility of a civil war continuing after Qaddhafi was gone? Of the possibility that we would trade rule by one tribal leader for rule by another? What about our commitment to the people of Libya to fight until success was achieved?

I saw precious little of any of this in the mainstream media, and none from the United States government—certainly not the 50-page white paper on the subject that I would hope for at a minimum. Instead, I saw Manichean discussions of a leader who was more or less the embodiment of evil, so that the calculations that just war theory calls for were just not needed. I have seen no indication that the White House made these calculations, and I know that there was no declaration of war, something the the U.S. Constitution takes for granted will be the start of a war that is not a defense against an actual sudden attack on U.S. forces or territory.

There is no indication, then, that in the spring of 2011 the war should have been considered to have passed the last four just war criteria: right intention, proportionality of ends, reasonable chance of success, and last resort. If it failed one, it should not have been supported, and it appeared to fail four—whether the cause was just or not. If there were secret discussions in the government of all these things, then the war still failed to be a just war insofar as we are a democratic society charged with a voice in major decisions—the very point of the Constitution’s placing the power to declare war in Congress, not the Presidency. Perhaps it passed the “just war by an absolute monarchy” test—but we do not even know that, as there is no evidence available. Looking ahead, we have assumed responsibility for an outcome, the overthrow of a tyrant, with no idea what the consequences were likely to be for the people of Libya. “We came, we saw, he died,” Secretary Clinton guffawed over the juxtaposition of her arrival in Libya and Qaddhafi’s death. But what about Libya? What will happen to all its people over the next two to ten years? Our media, as we know, have moved on to focus our attention on the next sexy issue—Libya is already basically forgotten.

Let’s draw a parallel: the execution of a fellow citizen. We know from all our history that this decision cannot be left up to faceless bureaucrats in a government—that way lies totalitarianism and tyranny. There needs to be a trial, presentation of evidence, and an unbiased weighing of it. So would we be concerned if a man were arrested, if we heard a lot of propaganda about what an evil man he was, and we were then shown pictures of his body after the execution, with no word of a public trial? Of course we would, if we were at all concerned about justice in our own country. A war is clearly like an execution of one man, only 10,000 times more serious. Yet as a country we did not take this war in Libya as seriously as March Madness.

Take this discussion of Libya and apply it to our drone strikes in Yemen and Somalia and Pakistan, to our overthrow of Saddam, to our long-term armed nation-building efforts in Afghanistan, and to our new, small war (trainers only, so far) against the Lord’s Resistance Army in Africa, to calls for war against Syria and Iran—how much death and destruction have we caused, how much more seems likely. Yet, are we being morally serious? Have we defined success? Have the calculations been made? Or are we living in a Manichean world where we are Good and from time to time we identify an Evil that we “must” attack, whatever the long-term costs for the people who live far away? I believe the answer is obvious. Just wars exist, but our current wars don’t fit the bill. That is true even in Afghanistan: the Afghan war began, I believe, as an effort of national self-defense with a just cause, but it quickly grew into a “nation-building” effort: an occupation of a foreign country by force (with no set time limit), something very different from a defensive war, and one that required the full just war criteria to be satisfied. As long as we intended to remake Afghanistan in some way, rather than simply respond to a real but not unlimited threat, it seems unlikely the criteria could have been met in that much-invaded, long-suffering country.

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Let’s deal with two likely objections before concluding. First, are these various conflicts really wars? Let’s clarify that what would qualify as an act of war if committed against the UK, or the U.S., is an act of war. A foreign cruise missile intentionally flown into a house in a town in any state in the United States would be considered by all Americans as an act of war. Soldiers of a foreign country coming into the U.S. on a helicopter and killing someone would be the same, whatever the justification in either case. So when our government forces commit these acts, let us call them acts of war. And how about sanctions? If a country, say Iran or Russia or China, persuaded the United Nations to impose sanctions on our country, Americans would consider that an act of war—so let us consider it an act of war when we persuade the UN to impose sanctions on another country. Fair is fair.

Next let us consider the point made by some theologians about who is qualified to decide if a war is just. For Catholics, this is related to section 2309 of the Catholic Catechism, which states concerning the criteria for a just war, “the evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.” In articles in First Things, Father Neuhaus substituted “political leaders” for that last phrase, and George Weigel suggested that political leaders have “the virtue or moral habit of responsibility” for such decisions—but the Vatican II document Gaudium et Spes (see paragraph 74) makes it clear that each member of a political community has some responsibility for the common good). Political leaders will of course make these decisions as long as there is any kind of government, but all citizens have the right to consider the question, advocate for a point of view, or vote someone out of office based on a decision they believe was wrong. This goes not only for the basic question of the justice of a war (which is a matter of judgment), but also for the prudential criteria I have dwelt on: political leaders are not gifted with infallibility, and the fallible judgments of ordinary citizens also have value in such questions, more or less value depending on their experience, knowledge, and wisdom. Often enough, if we look at history, this appears to be greater for many citizens than for the leader making the choice. (See here for further discussion of the flaws in the reasoning that simply dumps such decisions in politicians’ laps.) Finally on this point, the question of war is much like other questions decided by courts and legislatures and presidents, such as those concerning abortion or criminal penalties. Do we all have a right to an informed opinion on such issues? I am firmly pro-life (although I believe we need to rethink the mechanism for getting closer to our goal), but let us not be hypocrites: let all those who advocate for the special responsibility of political leaders in war add the same proviso concerning judges to their every published opinion on abortion: “let us remember that ordinary citizens and theologians have limited expertise in legal matters. Judges have the ‘moral habit of responsibility’ for such decisions, and they must decide legal cases.” This is almost precisely equivalent to the quibble about “our leaders having a special responsibility to make decisions about war.”

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So why is this essay called a Christian voter’s guide? I trust that is obvious too. For every citizen concerned about justice (which should include all of us), the question of whether a politician is willing to “rigorously apply” the “strict” principles of just war theory should be one extremely important consideration in whether that politician gets our vote. There aren’t many politicians who qualify—consider restricting your vote to one of them. (I can think of one without even trying.) Such a vote is a moral act, and the opposing act, of voting for someone likely to involve this country in an unjust war, involves the voter in this grave injustice. With all the immoral wars our forces appear to be fighting, this is crucial. Mainstream opinion in both our major parties appears to be in favor of Manichean rather than just wars. But if enough of us vote on just war grounds, our country could change.

Craig White is the author of the book Iraq the Moral Reckoning and the booklet PEACE & WAR in Today's World: What the Catholic Church thinks and why (published in the UK). A retired United States diplomat, he is currently a PhD student in political science.