Unjust combatants who feared punishment at the end of the war might be more reluctant to surrender, preferring to continue to fight with a low probability of victory than to surrender with a high probability of being punished.
Libertarianism, as Rothbard often emphasized, is firmly committed to natural law and is not an antinomian theory. Elshtain is right to stress the dangers of the sovereign self, which holds itself not bound by moral limits.
Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.