Thursday, June 12, 2008

Interpreting The Constitution

Ron Paul's Compelling Manifesto
by David Gordon

To say this at once raises a new question: how is the Constitution to be interpreted? Paul answers that it must be read in a way consistent with the underlying principle of the document, the promotion of freedom. In this connection, he cites effectively a speech by Daniel Webster that condemned conscription as unconstitutional. The Constitution does not mention the subject at all: how then could he be so sure that the government lacked this power? Webster said that since the Constitution aims to promote freedom, no infringement of freedom could possibly be constitutional unless the document explicitly mandated it.

A free government with arbitrary means to administer it is a contradiction; a free government without adequate provisions for personal security is an absurdity; a free government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous and abominable that ever entered into the head of man. (p. 56, quoting Webster)

Webster's view, here adopted by Paul, closely resembles Lysander Spooner's method of constitutional analysis, by which he controversially attempted to show the unconstitutionality of slavery, long before the adoption of the Thirteenth Amendment.

Of course the most well known of Ron Paul's recent attempts to use the Constitution to check federal power involves the Iraq war. The Constitution vests in Congress, not the president, to right to declare war. The Iraq war is then illegal, since Congress has not issued such a declaration. Supporters of the war cannot appeal to "authorization of force" resolutions. Congress cannot constitutionally delegate its power to declare war to the president, leaving it for him to decide when force is to be used appropriately.

Paul makes his criticism even stronger by connecting it to the just-war tradition. It is an uncontroversial part of that tradition that a war cannot be just unless it is initiated by one holding authority to do so. In our system of government, it is Congress that possesses this power. Absent a Congressional declaration of war, then, the Iraq war is unjust. (The point must not be misunderstood. It is not a requirement for any just war that it be authorized by legislative resolution: it is only that if a legal system vests the power to declare war in this way, it cannot be justly exercised otherwise. In the American system, war without a Congressional declaration is unjust as well as illegal.