an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Democracies, many classical Greeks believed, were slow to fight, but more effective when they fought (ancient memory suggests this assertion is somewhere in Thucydides, but I could not find the exact citation). The idea was that a democracy required a broader consent than an oligarchy before going to war, that the people who actually did the fighting and dying in a democracy had to approve for battle to be waged. Obtaining such consent was not as easy as talking five knights into taking their peasants across the seas. Lots of people had to be convinced that war was in the national interest. On the other hand, once proponents of war in a democracy persuade the population, democracies are thought able to bring far more resources to bear in combat than other regimes. People who support a war, classical Greeks believed, are more likely to make the necessary sacrifices than people who don't. Common sense.
Whatever else may be said for American policy in Iraq, that policy fails to meet classical Greek standards and is suffering for that failure. To begin with, the Bush/Yoo doctrine seems aimed at minimizing the consent necessary to begin and maintain military operations. From the refusal to seek a declaration of war to the idea that policy towards detainees will be subject to presidential interpretation and non-justiciable, the Bush administration has sought to narrow the relevant consenters to the bare minimum that might be regarded as constitutionally mandated. Even if one thinks there is a scrap of constitutionality in Bush doctrine, one should note that, when faced with a constitutional choice, this administration always prefers the route of least consent.
As important, and related, by refusing to secure broad consent for the war in Iraq, the Bush administration has been forced to minimize the resources necessary to win the war on terrorism. The result has been that inadequate troops were on hand to secure the peace, the costs and the time necessary to rebuild Iraq have consistently been grossly underestimated, and no effort has been made to ask most American citizens for the resources necessary to rebuild Iraq. Bush cannot ask for the substantial tax increase probably necessary for rebuilding the Iraqi infra-structure because he has not sought the broad based support for his policies that might induce the sacrifices necessary to execute that policy properly.
The result, classical Greeks would recognize, is a disaster. On the one hand, the Bush Administration's misadventures in the Middle East have ravaged a nation, making that nation ideal soil for terrorist networks. On the other, because most Americans have either opposed or been uninvolved in that effort, they are with some justification unwilling to provide the resources necessary to undo the damage done. No wonder many leading Republicans hope the Democrats do better than I expect this election! The real challenge for Democrats and everyone else is to find a policy that enjoys the support necessary to gain the necessary resources, and such support is not likely to be gained by ritually citing Alexander Hamilton on the unitary executive. Posted
by Mark Graber [link]
Whatever else may be said for American policy in Iraq, that policy fails to meet classical Greek standards and is suffering for that failure. To begin with, the Bush/Yoo doctrine seems aimed at minimizing the consent necessary to begin and maintain military operations.
Mr. Bush took months building up support for the war and gathering allies.
Public opinion polls show that the American people strongly supported the invasion of Iraq. For example, a CBS News poll from March 22, 2003, reported that 72 percent of adults nationwide approved “of the way George W. Bush is handling the situation with Iraq,” while only 23 percent disapproved. A USA Today/Gallup poll from March 24-25, 2003, reported that 71 percent of adults approved of the President’s actions in Iraq, while only 26 percent disapproved. And an ABC News/Washington Post poll from April 27-30, 2003, reported that 75 percent of adults approved of the President’s actions, while only 22 percent disapproved.
After he rallied the public, Bush requested the equivalent of a declaration of war from Congress and was rewarded with large bipartisan majorities (296-133 in the House and 77-23 in the Senate) granting him the Authorization for the Use of Military Force in Iraq.
The fact that many on the left who supported the war at the outset only to change their positions 180 degrees says more about their character than about the President's success in rallying the public and congress before the war.
These are times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands now, deserves the love and thanks of man and woman.
Democracies, many classical Greeks believed, were slow to fight, but more effective when they fought (ancient memory suggests this assertion is somewhere in Thucydides, but I could not find the exact citation). The idea was that a democracy required a broader consent than an oligarchy before going to war, that the people who actually did the fighting and dying in a democracy had to approve for battle to be waged.
I firmly believe in this dictum. Democracies fielding armies of free men have nearly always won wars against often far superior numbers of enslaved troops fielded by authoritarian nations. Victor Davis Hanson's fine book Culture and Carnage explores this idea in depth over centuries of western civilization.
You may be thinking of this passage from Pericles' Funeral Oration:
"It is true that we are called a democracy, for the administration is in the hands of the many and not of the few. But while there exists equal justice to all and alike in their private disputes, the claim of excellence is also recognized; and when a citizen is in any way distinguished, he is preferred to the public service, not as a matter of privilege, but as the reward of merit. Neither is poverty an obstacle, but a man may benefit his country whatever the obscurity of his condition. There is no exclusiveness in our public life, and in our private business we are not suspicious of one another, nor angry with our neighbor if he does what he likes; we do not put on sour looks at him which, though harmless, are not pleasant. While we are thus unconstrained in our private business, a spirit of reverence pervades our public acts; we are prevented from doing wrong by respect for the authorities and for the laws, having a particular regard to those which are ordained for the protection of the injured as well as those unwritten laws which bring upon the transgressor of them the reprobation of the general sentiment.
Then, again, our military training is in many respects superior to that of our adversaries. Our city is thrown open to the world, though and we never expel a foreigner and prevent him from seeing or learning anything of which the secret if revealed to an enemy might profit him. We rely not upon management or trickery, but upon our own hearts and hands. And in the matter of education, whereas they from early youth are always undergoing laborious exercises which are to make them brave, we live at ease, and yet are equally ready to face the perils which they face. And here is the proof: The Lacedaemonians come into Athenian territory not by themselves, but with their whole confederacy following; we go alone into a neighbor's country; and although our opponents are fighting for their homes and we on a foreign soil, we have seldom any difficulty in overcoming them. Our enemies have never yet felt our united strength, the care of a navy divides our attention, and on land we are obliged to send our own citizens everywhere. But they, if they meet and defeat a part of our army, are as proud as if they had routed us all, and when defeated they pretend to have been vanquished by us all.
If then we prefer to meet danger with a light heart but without laborious training, and with a courage which is gained by habit and not enforced by law, are we not greatly the better for it? Since we do not anticipate the pain, although, when the hour comes, we can be as brave as those who never allow themselves to rest; thus our city is equally admirable in peace and in war. For we are lovers of the beautiful in our tastes and our strength lies, in our opinion, not in deliberation and discussion, but that knowledge which is gained by discussion preparatory to action. For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection. And they are surely to be esteemed the bravest spirits who, having the clearest sense both of the pains and pleasures of life, do not on that account shrink from danger."
The more apt comparison from Thucydides is the example of Athens' conduct during the War. From its treatment of the Melians to the attack on Syracuse, there's certainly a lesson to be taught for our time.