In warfare, discipline and training always prevails. Roman exercises were said to be ‘bloodless battles’ so that their battles could be ‘bloody exercises.’ (Bellum Iudaicum Titus Flavius Josephus 75.) It was constant drill and repetition that allowed soldiers to react automatically without hesitation. Yet history shows us that regardless of how well an army prepares, it is all to no avail if the country’s political leaders surrender without a fight. Such tragedies can be avoided by constitutionally prescribed laws of war that force politicians to behave like a Roman legion—methodically, without hesitation, without panic, without uncertainty. An example of such a constitutional provision would be as follows:
Any elected official, or officer of the armed forces, who orders, procures, suggests, counsels, or argues for national capitulation to the enemy, thereby commits treason and it shall be the duty of every citizen to disobey, arrest, depose, execute, assassinate, or otherwise do him harm if they are able.
This may seem like an immoderate rule but in fact it is nothing more than substituting the rule of law for the rule of men, and thereby removing the fate of millions from the whims of a single man or group of men. Nor is it unwisely inflexible, as Emerich de Vattel explained:
If any one would rob a nation of one of her essential rights, or a right without which she could not hope to support her national existence, if an ambitious neighbor threatens the liberty of a republic, if he attempts to subjugate and enslave her, she will take counsel only from her own courage. She will not even attempt the mode of conferences on so odious a pretension; she will, in such a quarrel, exert her utmost efforts, exhaust every resource, and gloriously lavish her blood to the last drop if necessary. To listen to the smallest proposition, is putting everything to the risk. On such an occasion if fortune prove unfavorable, a free people will prefer death to servitude. What would have become of Rome, had she listened to timid counsels, when Hannibal was encamped before her walls? (The Law of Nations, 1758.)
The absence of such a law led to the fall of Belgium in May 1940 and France in June 1940. A similar fate nearly befell Britain around the same time. It is little known that during a war cabinet meeting in late May 1940, Neville Chamberlain and Lord Halifax argued for capitulation to the Nazis. The question was seriously entertained, and it was only Churchill’s obstinacy that prevented catastrophe. Had the proposed constitutional provision been in place, there would never have been any danger because the fate of the nation would not have depended on the whim of three men.
Constitutional rules should also require the defense forces and government of the day to honor standing ultimatums. The military would be entitled to ignore political orders made ultra vires, as is currently quite correctly provided for under the German constitution. In this way a lattice of complementary legal strictures would replace the conclaves of ministers, with their whims and fears, as the directing mind of the nation. The country would be immune from intimidation, and aggressors would be unable to anticipate gain from lightning strikes, subversion or intimidation.
