Torture Memos

June 16, 2004

I might as well write this, it is bugging me and getting in the way of the real work.

I have been thinking about natural law and the law of nations the last few days, and trying to square the "king" theory of laws that some of the recent Justice Department and Pentagon memos included with antebellum notions of natural law and the law of nations.

What do I mean?

Jefferson, Jackson, and Lincoln all appealed to the law of nations as derived from natural law in order to perform duties not regulated by the Constitution which they found necessary to the survival of the nation.

Jefferson wanted to buy Louisiana. There is nothing in the Constitution that gives the President the power to buy new territory for the nation. Rather than calling for an amendment to give himself the power, Jefferson argued that the constitution, like all frames of government, is drawn from natural law. The law of nature that governs the actions of sovereign states is the law of nations, basically Locke's state of nature with nation states instead of individuals as the crucial actors. (The common law is the law of nature as applied to events within a nation's borders, and in the Madisonian scheme the common law belongs to the several states. I digress.) The first rule of the law of nations as expressed in Vattel and the other 18th-century theorists was that a nation's first duty is self preservation. By extension, the executive of a nation has the power to take actions that will preserve the nation, thus while there was no constitutional right to buy Louisiana, that power was implicit in the law of nations as derived from the law of nature, and he could do it. So he did.

Similarly, during the nullification crisis Jackson reasoned that the principle of nullification, if permitted to operate, would necessarily lead to the dissolution of the United States. Holding, with Joseph Story that the nation preceded the Constitution, Jackson applied the law of nations to nullification to conclude that the compact theory of the nation was a suicide pact. Accordingly, he faced down South Carolina and held the nation together for an extra three decades.

Lincoln is the most famous of these examples. Not only did he appeal to Jackson's logic in the nullification proclamation as he tried to hold the nation together, he went farther and suspended habeus corpus and established military law in several states in order to keep these states in the union. He extended the power of the presidency because, in his opinion, not to do so was to see the nation dissolve.

Let us compare Jefferson, Jackson, and Lincoln to the claims made by the lawyers for the Bush administration. Jefferson said that the President can buy territory and enlarge the nation. Jackson said that states can not nullify federal law; the nation will not splinter. Lincoln said that during time of insurrection some civil liberties can be suspended in order to keep the nation from splintering. Bush's lawyers have said that the President can excuse people from having to obey laws, and that the adminstration can torture suspected enemies of the state.

I skimmed the various memos that have been posted by the Wall Street Journal, the New York Times, and other newspapers, and none of them seem to use the natural law background I lay out here. I suspect that they did not for several reasons. The first is that I am using antebellum constitutional theory and they tend to look at the more recent stuff. The second is that I am making an argument from first principles and most constitutional and legal jurisprudence is much more comfortable working with precedents and citations. The third is that to have done so would be to invite the comparison I am making here.

Jefferson - double the size of the nation by buying territory.
Jackson - prevent a single state from nullifying federal law.
Lincoln - put down a domestic insurrection and preserve the nation.
Bush 43 - torture random people as part of a poorly defined war on terror.

Jefferson, Jackson, and Lincoln all took their policies to the polls (Jackson indirectly as nullification came to a head during the winter after his re-election). All were vindicated by the voters.

So I suppose a vote for GWB is a vote for torture as a matter of state policy. Do you want to cast that vote?

Posted by Red Ted at June 16, 2004 02:06 AM | TrackBack

Considering the alternative, I suppose I will.

Posted by: DFH at June 18, 2004 01:43 AM
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