When I think about those who participate in obviously unconstitutional wars, whether federal agents, police officers, or members of the military, I wonder how they justify their actions when they look in the mirror.
Consider the drug war. The federal government claims the right to prosecute marijuana users in states that have legalized medical use of marijuana (for example, California). In pursuit of this goal, state and federal agents pursue people with terminal illnesses who use marijuana for what they perceive to be medicinal purposes.
Despite a recent Supreme Court decision to the contrary, Gonzales v. Raich, 545 U.S. 1 (2005), the Constitution clearly does not warrant this federal intrusion. The language of the Commerce Clause ("The Congress shall have Power To ... regulate Commerce") is aimed at economic exchange, not crops grown by people on their own land for their own consumption. The focus on economic exchange was what was intended by those who wrote and ratified it and how the clause was understood when it was ratified.
This focus also fits with the structure of the Constitution. If every act that in the aggregate affected the economy were to be viewed as commerce, then there would no limits in what Congress could regulate. It could then regulate flossing, Christmas gifts, and marital anal sex. This was not what the founders envisioned.
In addition to its grossly unconstitutional nature, one wonders whether federal agents were ashamed when they arrested those with terminal illnesses for palliative drugs. This has got to feel like police officers would have felt when they busted people for gay sex, alcohol, or interracial marriage. At some point, they must feel dirty.
A similar thing is true for those who fight in America's grossly unconstitutional wars. Consider President Obama's Libyan war. Congress didn't declare war as required by Article I Section 8 of the Constitution. Nor did it authorize the war as required by the War Powers Resolution. Congress didn't even fund the war, so it can't be argued that it implicitly authorized it. Only if one thinks that a super-majority of Congress must disapprove of the war by cutting funding over the inevitable filibuster, would the war pass Constitutional muster. This would suggest that Presidents have in effect a blank check to start wars and, again, there is almost nothing in the Constitution's language or past that supports this interpretation.
Here is the argument for federal agents and the military refusing to participate in these wars. They take an oath to uphold the Constitution. If they take such an oath, they shouldn't violate it. Participating in unconstitutional wars violates it. Hence, they shouldn't participate. Leave aside whether upholding one's oath is morally obligatory because the person who took the oath promised to do so or because he is required to do so by a value such as honor, integrity, fairness, or democracy.
Consider the military oath of enlistment, "I, -----, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God."
Consider the oath taken by FBI Agents. "I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic; that I will bear truth faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
A second argument is that unconstitutional wars are illegal because the Constitution is the highest law of the land. See Article VI. Federal agents and the military should avoid illegal activities. Hence, they should not participate in these wars.
One proponent of police and military obedience to commanders might argue that federal agents and military workers should substitute our leaders view of a war's Constitutionality (for example, by the Supreme Court or the President) for their own. The problem with this is that if these people know something is unconstitutional or illegal, there is no good reason to follow those who have reached a wrong conclusion. In addition, resting one's view of the law on the self-serving opinions of scoundrels and lawbreakers like Lyndon Baines Johnson, Richard Nixon, and Bill Clinton and their enforcers reflects a lack of integrity.
A second proponent might argue that federal agents and the military are not educated to think about these issues. As a result, they should leave it to the experts. This would be true if the issues were as complex as quantum physics. The issues are not so complex. Even if they were, before one person cuts another in half with a machine gun or throws him in a cage for a decade for selling pot, he should be able to explain, at least to himself, why he has chosen to trust others' analyses of the Constitution more than his own. Given the Alice-in-Wonderland reasoning necessary to make these wars appear constitutional and the executive branch's historic support for obviously unconstitutional stuff (consider, for example, wartime drafts), this is not an easy case to make.
A third proponent might argue that federal agents and the military take an oath to follow orders. This argument fails in part because part of the oath is to uphold the Constitution. Even if part of it requires they follow orders, it is unclear why this part trumps the Constitution-following part. In any case, neither group takes an oath to simply follow orders. Rather they take an oath to follow their legal orders (see, for example, the reference to the Uniform Code of Military Conduct) and unconstitutional orders are illegal.
Federal agents and members of the military who participate in unconstitutional wars violate their oath and act illegally. Given the clearly unconstitutional nature of the drug war and Libyan and Serbian wars and the constitutionally dubious nature of many of the U.S.'s other discretionary wars, the men and women who participated in them should be conflicted about what they did.
Stephen Kershnar is a philosophy professor at Fredonia State University. Send comments to firstname.lastname@example.org