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
When it comes to the war powers, there is an underlying question of the structure of politics that has produced our profound contemporary apathy on issues of war and peace -- so that members of Congress avoid having to vote on authorizing the use of force. A common argument is that the absence of a draft lessens the stake American civilians have in war, and so the military/civilian divide is dated from the post-Vietnam era.
My current work rolls the clock back to the Civil War, arguing that the structure of American war politics changes much earlier. Its origins are in the loss of what Drew Gilpin Faust (quoting Frederick Law Olmsted) calls "this republic of suffering." I am attempting to write a history of what happens to American war politics when the battlefield and the polity do not share the same geographic space, and most American civilians are protected from direct engagement with death and suffering in war (with, of course, exceptions and caveats). It is a story, in essence, of how war lost its politics and became instead a policy option in the hands of American presidents.
An overview of just part of the argument is in the Summer issue of Dissent Magazine -- How War Lost Its Politics. The essay places in a broader context the recent lawsuit against the Obama administration brought by Captain Nathan Michael Smith arguing that the war against ISIS is illegal because Congress has not
authorized it. I argue that:
The reason the
president has been unable to get Congress to pass a new war
authorization isn’t because Congress opposes military action against
ISIS, and it isn’t a simple matter of partisan stalemate. It is because
there is no real political constituency for military matters. Faraway
conflicts upend lives on the battlefield. As long as someone else’s
family does the fighting, U.S. military operations have little impact on
Americans at home. Most Americans are protected from the costs of armed
conflict. There is no required military service since Congress
eliminated the draft in 1973. Other changes in the way the country wages
war—relying on contractors to reduce the number of troops, and on
technologies that make war appear more precise and less
destructive—contribute to a buffer between American civilians and the
wars their country is fighting. Without voters paying attention, neither
the president nor Congress is held accountable.
How this has come about -- and how even WWI and WWII are part of the story of the way distant war affects American civilian engagement -- is taken up in the rest of the essay.