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 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 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
As the Obama Administration moves (slowly) toward repeal of Don’t Ask Don’t Tell, one argument in opposition is that the nation is at war, and significant changes in the military should not take place during wartime. One response to that point is that all hands are needed during heightened military deployments, and it harms American national security to dismiss trained soldiers. But there is a more fundamental reason that the argument against change during wartime doesn’t work: there is no end in sight to the war on terror. And endless war cannot be a reason for permanent stasis in military policy.
The no-change-during-wartime argument is an example of conventional thinking about war and American society. “Wartime” is imagined to be a temporary condition. It is a special kind of time. Wartime, by definition, is preceded and followed by “peacetime.” American history is thought to consist of the movement from peacetime to wartime and back again. In this conceptualization, wartimes always comes to an end.
This idea that wartime is by definition a temporary time is an essential ingredient of the argument that social change shouldn’t happen in wartime. This is presented as an argument that does not challenge change itself, but simply asks advocates of change to be patient. Change can come after the war is over.
But what if there is no end to war? (Continued after the fold.) United States military deployment has been on-going, at least since World War II. There is a disconnect between persistent American military engagement and the idea that “peacetimes” continue to exist, reflected in an awkward literature on war in “postwar” America. David Halberstam, for example, gave his book about war during the first Bush and the Clinton administrations the ironic title War in a Time of Peace.
Desegregation of the armed services is an example of social change during a time of military engagement, not during “peacetime.” Although V-E and V-J days had long passed by the time President Truman issued an executive order calling for military desegregation in 1948, World War II itself had not formally come to a close. The U.S. occupied Germany, Japan and other nations, and the Supreme Court continued to uphold exercises of Congress’s war power. World War II slid into the Cold War, which included the use of the Air Force during the 1948 Berlin Airlift. And as has been widely noted, desegregation was accomplished in the Army in the context of the need for ground troops in the Korean War.
Even if we could find ways to bound previous wars in time, the “war on terror” has been defined in a way that confounds the idea of an end point. It is not a war against a nation-state but against an ideology, suggesting that this state of war might only end when we reach an end of ideas themselves.
The Supreme Court has acknowledged the difficulty of our current war era’s temporality. Guantánamo detainees might be held for the duration of the conflict. But as Justice Kennedy suggested in Boumediene v. Bush, the present conflict “if measured from September 11, 2001, to the present, is already among the longest wars in American history.”
In the context of endless war, an argument that change must wait for peacetime is not an argument for patience. It should be understood for what it is: an argument to keep discrimination against gays and lesbians in the military in place. Scholars have often argued, however, that wartime has been the context for the expansion of equality rights. In that sense, expanding equality for gays and lesbians during wartime would not be an aberration, but instead would be in keeping with American tradition. Posted
by Mary L. Dudziak [link]