E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
By the time most of you read this, we may be at war.
Many Americans will now rally around the President. All Americans will rally around and support our troops in the field. All of them hope, as I do, that the war will be short and with a minimum loss of life for both sides.
It does not matter what our position was before. Once war has started, we want things to go as well as they possibly can. We want our generals to do what it takes to win.
But the fact that we support our troops once war has begun does not mean that we would have chosen this war in the first place. Rather, the man who sits in the Oval Office has placed our country in this precarious position. Our troops are mobilized and in harm’s way. They must fight to survive.
This is not a war of necessity. It is a war of choice. A choice made by George W. Bush and his advisers.
All this would be bearable if a President clearly and legitimately elected by We the People had taken us into war. But many Americans, myself included, do not believe that Bush legitimately won the election. We believe, and continue to believe, that the election was stolen.
To many Americans, it is especially galling that we are being pushed into an unnecessary war by a man who did not legitimately attain the vast power he now enjoys. It is one thing to democratically elect a President who makes bad decisions. It is quite another if the President who leads us into danger was forced on the country through trickery and deceit.
Make no mistake: A man who took power illegally is now taking us into war. And if he miscalculates, he may well bring blood and destruction on countless numbers of people.
The election of 2000 seems so long ago for many of us. But the consequences of that struggle haunt everything that is happening today.
The President’s political legitimacy was established not by the election of 2000, but by the events of 9-11. Our country was attacked, and we needed to put aside previous disputes in order to respond to that attack. George W. Bush was, quite literally, the only President we had.
Moreover, no matter who became President, that person would have invaded Afghanistan and made war on the Taliban in response to 9-11.
But at that point important differences began to emerge. It began to matter greatly who held power.
It is hardly clear that President Gore would have made the centerpiece of his Administration a war on Iraq, and that he would have engaged in blunderbuss diplomacy that would fracture alliances of fifty years’ standing, and squander all the good will America enjoyed in the wake of the terrorist attacks.
Nor is it clear that Gore would have hatched such a grand scheme against Iraq while disregarding the mounting threat simmering in North Korea.
Every day, the consequences of the disputed election of 2000 become clearer and clearer, and that clarity is not to the advantage of the man who now wields power over us and over the whole world.
For those Americans who think that the election was illegally concluded, the path our country is traveling is deeply troubling. For we know that we would not be moving in this dark and dangerous direction but for a constitutional coup, an unlawful accession to power. We now see, all too clearly, that the power of the Presidency, obtained dishonestly and unconstitutionally two years ago, has not brought us peace, but only more struggle, more danger, more strife.
The constitutional coup of 2000 has led to a great gamble by a man we do not trust, a gamble that threatens ever more wars, ever more death and destruction.
If war comes, I want our troops to win. I will pray that our generals are discerning, that their strategies are sound, and that their victory is speedy.
But I have no confidence in the man who sent them into war. He knows only how to seize power, not how to use it wisely.
Alea jacta est. The die has been cast by a would-be 21st-century Caesar.
Let us hope that we do not end up paying for his arrogance.