The Constitution in Wartime: Beyond Alarmism and Complacency

The Constitution in Wartime: Beyond Alarmism and Complacency

by Mark Tushnet

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Most recent discussion of the United States Constitution and war—both the war on terrorism and the war in Iraq—has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely…  See more details below


Most recent discussion of the United States Constitution and war—both the war on terrorism and the war in Iraq—has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely reasonable accommodations to the new realities of national security. Whatever their contributions to the public discussion and policy-making processes, these voices contribute little to an understanding of the real constitutional issues raised by war. Providing the historical and legal context needed to assess competing claims, The Constitution in Wartime identifies and explains the complexities of the important constitutional issues brought to the fore by wartime actions and policies. Twelve prominent legal scholars and political scientists combine broad overviews of U.S. history and contemporary policy with detailed yet accessible analyses of legal issues of pressing concern today.

Some of the essays are broad in scope, reflecting on national character, patriotism, and political theory; exploring whether war and republican government are compatible; and considering in what sense we can be said to be in wartime circumstances today. Others are more specific, examining the roles of Congress, the presidency, the courts, and the international legal community. Throughout the collection, balanced, unbiased analysis leads to some surprising conclusions, one of which is that wartime conditions have sometimes increased, rather than curtailed, civil rights and civil liberties. For instance, during the cold war, government officials regarded measures aimed at expanding African Americans’ freedom at home as crucial to improving America’s image abroad.

Contributors. Sotirios Barber, Mark Brandon, James E. Fleming, Mark Graber, Samuel Issacharoff, David Luban, Richard H. Pildes, Eric Posner, Peter Spiro, William Michael Treanor, Mark Tushnet, Adrian Vermeule

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Editorial Reviews

Library Journal
Tushnet (constitutional law, Georgetown Univ. Law Ctr.) has assembled 11 essays from legal scholars who largely paint a picture of constitutional rights subjugated during wartime. The Roman doctrine inter arma silent leges ("in time of war laws are silent") has guided American presidents and the Supreme Court on many occasions, but time has proven repeatedly the danger in the Latin logic. The example most frequently cited is Korematsu v. United States (1944), wherein the Supreme Court voted that military necessity justified the relocation of Japanese Americans, but it is not the only instance of the government overstepping constitutional authority in response to a perceived national security threat. Even more perplexing than the constitutional overreach is the propensity to repeat the error when the next crisis comes along. The explanation generally offered here is that the actions are taken under conditions of uncertainty when officials don't know how a war is going to turn out. Tushnet's own essay suggests a solution in which courts give no special deference to military judgments, addressing them as they do the decisions by other bureaucracies. He suggests that the government should also question whether policy responses are appropriate, given our inability to integrate the myopia of crisis with the clarity of retrospective analysis. A balanced study that strives for historical accuracy; for academic and public libraries.-Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., First Judicial District, New York Copyright 2005 Reed Business Information.
From the Publisher
“The collection of essays in The Constitution in Wartime will enhance the quality and depth of the debate that surrounds many of the measures taken by our government in the war on terrorism. Mark Tushnet has written a fine introduction to a superb collection of essays by a top-notch group of scholars.”—William C. Banks, Laura J. and L. Douglas Meredith Professor, Syracuse University College of Law
Harvard Law Review
"Mark Tushnet's groundbreaking collection of essays seeks to push discourse beyond this public shouting match. . . . Each essay is a sober reflection upon its chosen topic, demonstrating a mastery of existing constitutional studies and a deep sense of history that is lacking from 'first generation' scholarship in this field. Yielding surprising conclusions at more than one turn. Professor Tushnet and his contributors succeed in their goal of pushing public discourse away from the shrill rhetoric at the poles of the debate and toward real insights that will shape the formulation of public policy and the post-9/11 constitutional order."

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Duke University Press
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Constitutional Conflicts
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The Constitution in Wartime

Beyond Alarmism and Complacency

Duke University Press

Copyright © 2005 Duke University Press
All right reserved.

ISBN: 978-0-8223-3456-9

Chapter One

War and the American Constitutional Order

Mark E. Brandon

History of American Military Conflict

The United States is a regime founded on military conflict. This is to say more than that the United States relied on a war of secession to gain independence from Britain. It is to say also that the United States has resorted frequently in its history to military force. From the Revolution to the present, armed forces of the United States have participated in eighty-four distinct, significant engagements. Of these, six were declared wars, ten were undeclared wars, and the rest were significant actions (including campaigns against Indians). In aggregate, these wars and actions have occurred in 182 of the 228 years since 1776 (80 percent of the life of the nation). In the last quarter of the eighteenth century, there were twelve years in which the United States did not use its military according to my classification (or 48 percent of that period); in the nineteenth century, there were twenty-eight such years (28 percent); in the twentieth century, there were but six such years (6 percent); so far in thetwenty-first century, there have been no such years. Thus, the United States has been at war or engaged in significant military action for most of its corporate life. Military action has been such a substantial part of the history of the nation that it is not unfair to characterize the United States as a warrior state.

I should be clear about my meaning. The warrior state is not necessarily a martial state. Hence, the term need not connote a regime that glorifies war or the military, nor one in which the military controls the administration of state, nor one that comprehensively organizes and regulates society for predominantly militarist purposes, akin to Sparta in ancient Peloponnesus. In fact, it is one of the distinctive aspects of the American experience that the nation's military actions have tended neither to arise from nor to provoke a crisis; that is, the nation has typically used military force under conditions in which (1) the survival of the order is not at risk and (2) the order can simultaneously fight and maintain a domestic life that appears to be "normal." Nor need we question in each instance the validity of the nation's motives or its reasons for action. In using the term "warrior state," therefore, I have in mind merely a regime for which the use of military force is a regular aspect of the nation's life. My aim is to reflect on the possible constitutional implications of a warrior state, no matter how well intended it might be.

Constitutional Implications

We may roughly characterize a constitutionalist order as one that includes (1) institutions authorized by and accountable to the people (both in the making of the order and in the regular operation of government); (2) some notion of limited government (whether by the designation of purposes for governmental action, the specification of rights, or the allocation of authority among institutions); and (3) rule of law (which connotes the regularization of processes by which public norms are made and applied). Neither war nor the military that wages it is inherently anti-constitutionalist. In fact, Alexander Hamilton offered a military justification for ratifying the proposed Constitution of the United States. He bemoaned "the imbecility of our government" under the Articles of Confederation. Hamilton obsessed that the country was facing "impending anarchy." As military weakness was at the heart of this crisis, he said, defense was the linchpin of the solution. Moreover, he insisted, the power of defense was illimitable. War, or the power to wage it, was a comprehensive "unconfined authority" on which the success and survival of the extended commercial republic depended.

But as even Hamilton sometimes conceded, strength alone was an insufficient justification for the Constitution. Put differently, if war (or the military) can create or conserve conditions for making or maintaining a constitutionalist politics, it cannot establish constitutional authority. The reason rests in the distinction between power and authority. Hamilton comprehended something of this distinction when he posited that the proposed Constitution was an "experiment" in whether it were possible "to establish good government through reflection and choice," instead of through "accident and force." In a constitutionalist order, then, the exercise of power must be authorized, justified, and constrained. Power alone is inadequate. Clinton Rossiter pushed the point further. "[T]he complex system of government of the democratic, constitutional state," he wrote, "is essentially designed to function under normal, peaceful conditions.... 'Democracy is a child of peace and cannot live apart from its mother[.]' ... 'War is a contradiction of all that democracy implies. War is not and cannot be democratic.'"

There is, therefore, an ineluctable and potentially dangerous tension between military force and constitutional government. This tension makes for a vexing dilemma. Although raising and deploying armed forces may be indispensable for sustaining a secure environment for constitutionalist politics, creating a safe place and constructing safe roles for military institutions are among the most troublesome challenges of a constitutionalist order. Continual military engagement can pose special dangers, because it can create and perpetuate conditions that are uncongenial to constitutionalism. In this essay, I consider five areas in which such conditions might hold-national ethos, rights, republican government, the allocation of institutional authority, and sovereignty-and I suggest why a constitutionalist might worry that the conditions are present in the American order.

National Ethos

Doubtless the warrior state is inconsistent with the self-image of most Americans and with the standard proclamations of their public officials. Even in time of war, most politicians insist that the history, purpose, and ethos of the nation are peaceful. It is not mysterious that Americans would want to see themselves in this way. The normative precepts of constitutionalism presuppose a degree of peace-sufficient to sustain reflection and choice-in the regular affairs of the order; if Americans aim to be constitutionalist, therefore, it makes sense that they should see their motives as peaceful. Still, how to reconcile their aspiration with the nation's behavior?

One way to do so is to construct the world in terms of "us" and "them" or, somewhat differently, in terms of "friend" and "enemy." There are many ways of dividing the world on these terms-national, ideological, economic, religious, racial, and others. Often the conflict is viewed as implicating competing ways of life. But whatever the content of a particular classification, it can be useful, not simply as a description of the world or of competing aspirations, but also because it protects against the disabling or disorienting effects of psychic dissonance. If we have acted in warlike ways, it is because "others" have been responsible. Those others have been-are-dangerous. They have provoked us. They have threatened us. Or worst, they have physically attacked us. If we respond militarily, our behavior is not inconsistent with, but rather attempts to preserve, the ethos of peace that genuinely defines us.

The psychic incentives for this logic have contributed also to a kind of moralism in American foreign policy. This disposition is not confined to the kind of morality represented by the internationalist diplomatic agendas of Presidents Wilson and Carter. Hence, it is not coextensive with what Robert Osgood characterizes as a pure form of "idealism" (whose psychological antonym is "egoism"). The moralist disposition I have in mind extends to a more primal (and conflictual) moralism whose constituent elements are good and evil. In the American context, this form of moralism surely has cultural roots in Puritanism, which posited the existence of a covenantal relationship between political community and God. For American Puritans, evil was in them-in all of us-as fallen creatures. Their struggle, simultaneously humble and arrogant, was to make themselves worthy of the beneficence that the Maker of the Universe had generously bestowed on them, if not on others.

By the second half of the twentieth century, of course, Americans were not saddled with doubt about their worthiness. We can see the lightened load in Jimmy Carter's repeated invocations of the goodness and decency of the American people. It is not that the concept of evil was unimportant to Mr. Carter, certainly not for the individual who might be tempted to sin; but most of President Carter's public moralism focused on the aspiration to goodness, without attempting to balance it with references to evil. In the context of foreign policy, then, Mr. Carter could unashamedly pronounce: "It is a new world that calls for a new American foreign policy-a policy based on constant decency in its values and on optimism in our historical vision." Part of President Reagan's rhetorical talent was his ability to restore allusions to evil without calling into question the basic goodness of America. Hence, he could insist that the United States had realized the Puritan aspiration to "a shining city on a hill" and could depict the Soviet Union as an "evil empire." George W. Bush has retained the simple structure of Mr. Reagan's moral rhetoric but adapted invocations of evil to contemporary events.

Allusion to evil is politically potent because it reflects a particular psychological form: the patriotic personality. Osgood describes the form in this way:

A citizen's dependence upon his nation assumes a distinct intimacy because he confers upon the object of his allegiance the attributes of a person so closely identified with his own personality that he virtually acquires a second self, in whose behalf he can feel friendly, hostile, generous, selfish, confident, afraid, proud, or humiliated almost as poignantly as he would feel these emotions for himself in his relations with other individuals. However, the conscience of this vicarious personality, unlike the private conscience, is relieved by the sanction of patriotism, so that a citizen can manage with a sense of complete moral consistency to combine lofty altruism toward his own nation with extreme egoism toward other nations and thereby actively support a standard of ethics in foreign relations which he would not dream of tolerating in his private dealings.

In short, the patriotic personality conjoins the two elements of Osgood's antinomy-idealism and egoism-without fully integrating them. The distinction between friend and enemy reinforces and stabilizes the segregated elements of this personality.

The bifurcation of political personality is useful. It promotes the cohesion and attachment necessary for sustaining a voluntary political order committed to resolving conflict through reflection and choice. At the same time, it can both justify an aggressive posture toward others and diffuse the psychic dissonance of this posture (as against the image of peacefulness) by rationalizing aggression as self-defense. What, then, makes the personality and the ethos that reflects it problematic from a constitutionalist standpoint? The primary danger is that it is almost perfectly rational even as it is segregated. That is, it may create a too-perfect enclosure, converting attachment to patria into an article of faith and rendering the peaceful self-image essentially nonfalsifiable. This combination can effectively make the citizenry incapable of judging possible deviations from the image of peacefulness. Those citizens who presume to judge will risk being labeled "the enemy," or at least complicit with the enemy. What follows is that even if the peaceful self-image is a desirable aspiration and even if it is an accurate description of some (or most) events, the image will cease to be useful for constitutionalist purposes, because it will lose the capacity to constrain or direct action. In short, it will justify almost any behavior, and no one will be the wiser. Ironically, therefore, although a form of nationalism can be useful for creating and maintaining constitutionalist institutions, a comprehensively nationalist ethos can weaken the constitutionalist character of those institutions.


Conventional wisdom posits that in time of war, rights tend to give way to power. Rossiter, for example, argues that any state, even a constitutional state, will resist its own physical destruction and will do so by any means at its disposal, even anti-constitutionalist means. Hence in time of war, "[c]ivil liberties, free enterprise, constitutionalism, and government by debate and compromise" give way to needs of state. So framed, this is an empirical claim. I shall argue that it is overstated. Still, there is enough evidence supporting it that in a nation at war the status of rights-whether civil liberties, personal liberties, or rights to property or of enterprise-might be worrisome from the standpoint of constitutionalism. This worry aside for now, one question is this: To the extent that the empirical claim is accurate, what might justify it?

From within American constitutional discourse, there are two prominent ways of approaching the question. The first is to invoke the ancient precept Inter arma silent leges (in time of war the law is silent) as principle's pragmatic concession to necessity. This is certainly the approach of Thomas Jeerson's letter to J. B. Colvin: "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation." Some version of the precept seems to lie behind Abraham Lincoln's suspension of provisions of the Constitution during the Civil War. The precept also underwrites the Supreme Court's ratification of Lincoln's seizure of commercial ships despite the absence of a declaration of war and the Court's strained strategy of institutional self-preservation in Texas v. White. And silent leges lurks beneath Justice Jackson's dissent in Korematsu v. United States: "I would not lead people to rely on this Court for a review that seems to me wholly delusive.... If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint."

At first glance, the precept of silent leges seems an extreme solution to a constitutional problem, especially when we consider how frequently the United States finds itself at war. Perhaps, for example, it presumes too quickly that war generically threatens the survival of the order. Some wars might-the Revolution, the Civil War, and the Second World War maybe-but most seem not to do so. Perhaps, too, the precept underestimates the capacity of judges to distinguish and stand against unnecessary restrictions on liberty in times of military mobilization. Does not the precept, moreover, make judges complicitous in extra-constitutional actions, requiring them to look the other way (or give legal cover) when political or military actors claim necessity?


Excerpted from The Constitution in Wartime Copyright © 2005 by Duke University Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. His many books include A Court Divided: The Rehnquist Court and the Future of Constitutional Law, The New Constitutional Order, Slave Law in the American South: State v. Mann in History and Literature, and Taking the Constitution Away from the Courts.

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