In a liberal democracy, the government can only morally do what the governed have affirmatively authorized it to do, writes Andrew P. Napolitano. This is not the case with Trump’s war on Iran.
U.S. President Donald Trump on March 18 saluting the transfer at Dover Air Force Base, Delaware, of six U.S. service members killed in the Middle East (White House / Abe McNatt)
War is the most horrific series of events upon which any government can engage. It is systematic, industrialized, indiscriminate killing. It kills innocent adults and little girls. It often ruins the post-war lives of the killers. It is young men violently fighting old men’s power games. It is the health of the state.
The war President Donald Trump is waging against the people and the government of Iran is immoral, unconstitutional and unlawful. Yet, because Congress is not doing its job, there appears to be no relief in sight until Trump finds a face-saving way to erase his grave mistake from the public’s long memory.
An act of a person or a government is moral when it conforms to a universal set of principles designed to induce good over evil and justice over injustice. These principles are discoverable by all unimpaired adults exercising reason. Adults should comply with them. Children often know them.
To address this, we start with the primacy of the individual over the state. The individual is morally superior to the state because all persons have natural rights, consciences and free wills; and because in the U.S., “We the people” created the state. We are, of course, free to obey our consciences or to violate them; free to respect the natural rights of others or to transgress them.
When we transgress the natural rights of others, our behavior — whether lawful or unlawful — is immoral. When laws enforce natural rights, laws are valid and moral. When laws themselves transgress natural rights — by, for example, punishing speech or seizing property or restraining free movement or invading personal privacy — the laws themselves are immoral.
The government — which is an artificial creation based on a monopoly of force in a defined geographical area — does not have a conscience or a free will. In a liberal democracy, the government can only morally do what the governed have affirmatively authorized it to do.
Thomas Jefferson, writing in the Declaration of Independence, recognized that the government derives its “just Powers from the Consent of the Governed.” From this it follows that if the government exercises powers to which the governed have not consented, then its powers are unjust and their exercise is immoral.
Can the governed give immoral powers to the government? Yes, they can. Suppose the governed consented to a war against another country not based on self-defense but based on their collective hatred of the race or ethnicity or religious beliefs of the inhabitants of that country. Such a war would be immoral, not just because killing not in self-defense is always wrong but because killing based on hatred of immutable characteristics is immoral, even if consented to.
I offer this brief philosophical roadmap to address the morality of Trump’s war. When using deadly force, the government has a heavy burden to overcome. It can only overcome that burden by offering publicly scrutinizable facts to demonstrate its claim of the immediate necessity of killing others who are not engaged in violence against us.
The government has not done so.
Congress & the Consent of the Governed
No War on Iran protest at the White House in Washington, D.C., on March 7. (Diane Krauthamer, Flickr, CC BY-NC-SA 2.0)
In the case of war, the bad to be corrected must be clear and obvious and the good to be achieved must be morally superior to that which impelled the war and one that can reasonably be expected to come about from the war.
The war must be initiated by a lawful authority; its objective must be clearly stated and winnable. And the means — the damage produced — must be proportionate to the evil to be eradicated.
None of these is the case in Trump’s war on Iran. He has not stated a moral goal. Ridding the Iran government of nuclear weapons cannot be considered a moral goal as the mere possession and nonuse of these weapons — which last June Trump stated did not exist — is not immoral. Only their use is.
The mere possession alone of these weapons cannot be a moral basis for invasion as both invading nations — the U.S. and Israel — have nuclear weapons, which the U.S. has used and Israel has not.
At the start of the war, Trump told the Iranian people he would help them to “take over your government. It will be yours to take.” If that is Trump’s purpose, this is a war of aggression, not defense.
Was the war commenced by a legitimate authority to which consent was given by the governed in America? It was not. Under the U.S. Constitution, only Congress can define an enemy and decide to attack it by declaring war. This war was commenced by the president alone, with no definition or declaration by Congress.
Neither the president, nor his secretary of state, his secretary of defense or his director of national intelligence have articulated the existence of an imminent threat posed by Iran to the U.S.
What could it be? Iran does not have nuclear weapons. Its missiles cannot reach the United States. North Korea, on the other hand, does have nuclear weapons and missiles that can reach Hawaii and California, and its leader is an erratic megalomaniac. Is North Korea next?
Two weeks ago, Trump’s senior counterterrorism official, who saw the same classified data that Trump’s advisers saw, stated affirmatively in his resignation letter that Iran poses no imminent threat to America. His boss, the director of national intelligence, refused to state under oath if Iran posed an imminent threat to the U.S.
What’s going on here?
What’s going on is what James Madison feared. He argued that it is vital for the war making and the war waging powers to be separated — as they are in the Constitution — because, if a president could both declare and wage war, he’d be a prince; like the one from whom the colonists seceded. Of what value is a Constitution that is directly dishonored by those sworn to uphold it?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
It is not the case with a liberal democracy of America Evil Empire.
Liberal democracy has Owners now and it doesn’t work anymore, try something else before it’s too late.
We can’t vote ourself out of this sh1t.
Face it and act accordingly.
American Evil Empire delenda est.
Apparently Trump’s daily Iran war briefings consist of 2-3 minutes videos showing explosions, which also explains his lack of intellectual intelligence.
Daily video report from Iran
Reason2Resist with Dimitri Lascaris
The attack on Iran is not a “war” , technically.
What it is : a diversion from Epstein…
Dear wonderful Judge,
Thank you for your clarity. As we all know, there is a crack in the Liberty Bell. The metallurgy at the time could not forge a durable metal bell and after three rings it cracked, it could no longer hold a pure and resonant tone. Likewise the Founders did not form a democracy that would last and shine forth through the centuries. American democracy was not based on the fundamentals of economic democracy. The Founders grafted important political freedoms (at least to white male property owners) onto a base system of predatory land and resource grabbing and profiteering. Making a “killing in real estate” over time leads to extreme wealth and power inequality, of rule by the few over the many. Note that the three chiefs – Trump, Kushner and Witkoff – are all professional real estate brokers. They are all quite good at making a killing in real estate. Perhaps this translates into a US foreign policy of “full spectrum dominance” and the quest by American wealthy elites for hegemonic world power and control?
Bravo to your understanding of Natural Law. Now please bring forth a First Principle of Natural Law and that is that “the earth belongs to everyone.” When the human birthright to the earth and policies based on this principle are not in place, the people perish. There is growing homelessness. People become wage slaves, working long hours to be able to pay rents and mortgages for increasingly unaffordable housing. The United States in its current form is based on the Roman Law of “dominium” that legalized land acquired by conquest and plunder. The original Judeo-Christian natural law of everyone’s right to the “koina” – the commons of land and natural resources, to enable the “autarkeia”, the self-sufficient livelihood of all – was corrupted and displaced when Augustine created Just War Theory as a rational for pacifist Christians to fight and die in Roman wars.
The potentially saving grace of the Liberty Bell is that alongside its crack is this quote: “Proclaim Liberty throughout all the Land and unto all the Inhabitants Thereof.” These words are from Leviticus 25:10, which puts forth the biblical Jubilee law. The Silver Jubilee was the cancellation of debts and it was to be proclaimed every seven years. The Golden Jubilee was to be every 50 years and proclaimed everyone’s right to their fair share by birthright of equitably distributed land. Additionally, captives were to be set free.
Our current need for debt cancellation is urgent. The way going forward is to then establish a fair monetary system via a debt free money supply and public banks established on a no-profit, no-loss basis. A practical way to establish fair share rights to land and natural resources is via a fundamental public finance reform that shifts taxes off of “earned income” of labor and production and onto the “unearned income” gained from private profiteering in the commons of our Earth, local to global. The economy and democracy itself would then function in such a way as to end what Martin Luther King called the Three Evils of poverty, racism and militarism. Readers can continue with internet searches using key words of commons rent, land value taxation, land value capture, and Henry George.
Thank you!
Excellent post!
“All Earth’s resources become the common heritage of all of the world’s people.” – Jacque Fresco (March 13, 1916 – May 18, 2017) Founder of The Venus Project.
Justice Andrew, thanks for the article. Hope Americans will be able to come to terms with you soon that theirs is not a democracy.
War and Morality:
“Then said Jesus unto him, “Put up again thy sword into his place, for all they that take the sword shall perish with the sword.” — Mathew 26:52, KGV
“Thou shall not kill” — Exodus 20:13, KGV
PS …. notice that the word “defense” does not appear in either situation.
good article to read slowly , a lot is said in it .
Are laws are made to broken ?
challengable or until court adhudicated ? free until lawyers fees ? lol
The word “moral” appears often .
It seems so allowable to qualify its meaning after the fact ?
this quote:
“These principles are discoverable by all unimpaired adults exercising reason. Adults should comply with them. Children often know them.”
Or they can experience its wrath
Metaphorically firsthand , backhand , or of others moral hands ?
Sometimes by command meant ?
A hand in deed is a hand in need ?
Brilliant and beautifully written! Sadly, however, you don’t provide us with specific strategies to bring these gangsters to justice. As the founder of Nuremberg Now, I write and circulate petitions to hold our officials accountable. I delivered one in person in 2018 to the ICC to investigate Israeli war crimes, and they eventually did, even though Netanyahu has yet to be arrested. My next one is to the Supreme Court to rescind Presidential Immunity Ruling. All of your amazing guests need to provide us with the tools to lawfully dismantle the structure that protects the criminals in charge of our Country!
A crowd of, oh as a first guess, 10 million people in DC? That might be a first step towards ‘bring these gangsters to justice’???? If 10 million people does not do the trick, then try for 15 or 20 million? When a specific number of people does not work, just add more people. This is the way that change has traditionally occurred in human societies.
As a LIBERAL who goes STRICT CNSTRUCTIONISTS ON SOME THINGS
I suggest the words of Mr. Gerry during his time in the writing of the Constitution of the United States, John Quincy Adams in his writing of “Monsters to Destroy” prior to his involvement in writing the Monroe Doctrine, AND Thomas Jefferson in the Declaration of Independence.
August 17, 1787, Madison Notes on the Federal Convention
To make war
Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in [FN25] Senate, so as to give no advantage to [FN25] large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.
Mr. BUTLER. The objections agst. the Legislature lie in [FN26] great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.
Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. “Make” [FN27] better than “declare” the latter narrowing the power too much.
Mr. GERRY NEVER EXPECTED TO HEAR IN A REPUBLIC A MOTION TO EMPOWER THE EXECUTIVE ALONE TO DECLARE WAR.
Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.
Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred “declare” to “make.”
On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. [FN29] Pa. ay. Del. ay. Md.
——
“If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people?”
Alexander Hamilton, Federalist #29, January 10, 1788
Plus we have John Quincy Adams, the prime author of the Monroe Doctrine in 1823 in 1821 writing: “But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign Independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force. The frontlet upon her brow would no longer beam with the ineffable splendor of Freedom and Independence; but in its stead would soon be substituted an Imperial Diadem, flashing in false and tarnished lustre the murky radiance of dominion and power. She might become the dictatress of the world. She would be no longer the ruler of her own spirit.”
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Thomas Jefferson, Declaration of Independence
Beautifully written. Clear and concise anyone with half a brain and a tinge of morality would have to agree. The fact that this is occurring in Plainview, and obviously wrong as pointed out in the peace tells one everything needed to know about the reality of our former country. it is painful to realize that we have become other than what we believe, but until we do, there is no chance of returning to what we were. Is it too soon to say RIP USA?
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Removal of one’s rose-colored glasses.
“Free at last, free at last…”, no direct thanks to the Judges presumed divinity of the U.S. Constitution.
According to the Judge: “Under the U.S. Constitution, only Congress can define an enemy and decide to attack it by declaring war”, despite his hard-won apparent, acute awareness that Congress today is nothing more than a rubber stamp authority for the will of Executive power.
In 2002 Congress passed the Resolution: Authorization for Use of Military Force Against Iraq, granting President George W. Bush authority to attack Iraq.
In 2003, having been given the go-ahead by Congressional authority, the U.S., thereby ‘legitimately’ commenced an attack on the sovereign country of Iraq, in order to overthrow its President.
Is this the universal morality in the U.S. Constitution the Judge is referring to?
“What’s going on here?”
Nothing new, as far as this commenter can tell.
Where was Judge Napolitano’s astute legal reasoning in 2003?
Change may be as good as a holiday, yet the proof of natural species evolution and individual enlightenment seems to be, at best only close, relatively.