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Balkinization Symposiums: A Continuing List                                                                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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Of Guns, Ships, Pens, and Liberals
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Sunday, November 07, 2021
Of Guns, Ships, Pens, and Liberals
Mark Graber
For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021). The
Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the
Modern World is
a scholarly epic. The work is epic in
scope. Professor Linda Colley wanders up
and down the eighteenth and nineteenth centuries, from Corsica to Japan, from
Liberia to Russia, from Pitcairn Island to the United States. The Gun, the Ship, and the Pen is epic
in academic range. Professor Colley
offers insights from history, law, political science and sociology. There is a good deal of art history, although
no Beethoven. The epic scope and range
of the book is matched by the epic thesis.
Professor Colley details how the development and spread of written
constitutions throughout the entire world was to a fair degree a consequence of
the more expensive and more frequent wars fought by regimes from the New World,
the Old World, the Far East, and what we now call the Global South. If someone fired a shot on land or sea from
the Seven Years War to World War One that caused another person to take up a
legal pen, Professor Colley provides the details. One of the most remarkable features
of this remarkable book is the granularity of the examples. Most of us spend our lives on approximately
four pages of this four-hundred page work.
Unsurprisingly, I might describe differently a few details of
constitutional development during the American Civil War, the four pages of The
Gun, the Ship, and the Pen to which I have devoted a half lifetime of
study. Others whose academic life is as
focused may have similar concerns about their bailiwick. Those revised details, at least with respect
to the American Civil War, would not, however, change the overall thesis or
direction of the book. This is a grand
epic that can be bothered with the small facts.
Constitutional change in the United States is a product, first of the
need to consolidate a regime to preserve independence after the American
Revolution and, second, of the need to construct a constitutional politics to
prevent renewed secession after the Civil War.
“If men were angels,” to quote Madison, and did not resolve disputes by
war, there would be no need for Americans to write down the rules of government
or for written constitutions in the United States. The adage that Americans only learn about the United States when they travel abroad applies to Americanists reading Professor Colley. Persons similarly specialized are likely to
learn as much about their small slice of time and place. Professor Colley proposes a
materialist explanation for written constitutions. Written constitutions, like the common law,
are a response to social needs. The need
for speed, Howard Schweber’s study of the impact of trains on tort law details,
explains northern modifications of negligence rules during the years before the Civil
War. The need to finance, mobilize for, and
prevent wars, The Gun, the Ship, and the Pen details, explains the development and spread of written constitutions. Ideas in that work appear to be epiphonema. Montequieu’s The Spirit of the Laws was
inspired by the “systemic quality of contemporary conflict.” John Locke appears as the author of The
Fundamental Constitutions of Carolina, a means for establishing a settler
colony in the New World, but not as the author of The Second Treatise of
Government. Liberia is in the index and discussed. Liberalism is not. There is a substantial literature in
American political science on war and constitutional development that supports and
deepens Professor Colley’s emphasis on the important of the military. Works on American political development play
variations on Randolph Bourne’s thesis that “war is the health of the state.” Rebecca Thorpe and Steven Griffin have
examined the political and constitutional changes that occurred when the
president acquired permanent armies and weapons. Richard Bensel and Bartholomew Sparrow have
examined the ways in which war dramatically increased the capacity of the
American state. Philip Klinkner and Rogers Smith detail how persons of color tend to gain rights only
when a major military conflict occurs that requires the government to mobilize
black men for military service. The modern
warfare state, Professor Colley reminds is, is the modern constitutional
state. Written constitutions motivated
by military concerns augment presidential power, develop state capacity, and
enable minorities to become full or fuller citizens. Scholarship in American political
development does raise questions about war as an explanation for constitutional
development. Mary Dudziak and Mark Brandon suggest the United States is a warfare state that is almost always
planning a war, fighting a war or recovering from a war. The United States is hardly unique as a warfare state. War from the
dawn of human political history has been a and usually the central occupation
of states and regimes throughout the globe.
Most states at most times are planning a war, fighting a war, or
recovering from a war. Often regimes are
doing all three. War is also the most expensive state
activity. Military budgets typically dwarf budgets for almost all other
activities. Constitutionalism from this perspective is only one manifestation of the warfare state. Given the pervasiveness and
centrality of war to most politics, almost all state developments, from written
constitutions to fundamental rights to the separation of powers are likely to
be closely tied to planning wars, fighting wars, and recovering from wars. The ubiquity of war suggests a
deeper dive into Professor Colley’s materialist explanation for the development
and expansion of written constitutions.
Constants, the presence of war, do not explain variables, the development
and spread of written constitutions. Nations
throughout the world were at war long before written constitutions. One wonderful feature of The Gun, the Ship,
and the Pen is the emphasis that warfare states exist throughout the globe.
Not just in Europe. Everyone seems to be
fighting everyone else for the longest periods of time. Wars
previous to the eighteenth century may not have cost as much as eighteenth
century wars, but they were expensive enough and their financing led to
fundamental regime change. Ask Charles
I. England and France seemed to have
been at war for as long as regimes existed that could be identified as English
and French. Regime changes in both
countries were consequences of those wars.
What the mere presence of war cannot explain is why specific regime
changes took the form they did. Constant
wars with Native Americans in the seventeenth century had only a limited
influence on written constitutionalism.
The American Revolution led almost immediately to one written constitution,
the Articles of Confederation, and to the Constitution of the United States
within a decade. We might gain more purchase on the
development of written constitutions by focusing, as Professor Colley does, on technology. Technology changed wars in the eighteenth
century. The wars Professor Colley
discusses from the eighteenth to the early twentieth century became more
expense and more deadly. Technology
explained changes in the nature of warfare.
At one point in time, a good defense, such as a heavily fortified castle
or city, could beat a good offense. New
weaponry changed the balance of power between offense and defense. By World War One, Robert O'Connell has documented,
for the first time in human history, offensive weapons were clearly outpacing
defensive weapons. Mobilization meant
mobilization for an offensive war, for while twice armed was the country whose cause
was just, thrice armed was the country that got their blow in “furst." Technology also changed the pen. Professor Colley observes that written constitutions
flourished in the eighteenth century because they could be printed and reach a
literate audience. This development was
made possible only by the invention of the printing press and technologies that
facilitated the development of newspapers.
One virtue of the Constitution of the United States was that the entire
text could be printed by the daily or weekly papers of the time. Written constitutions were a fundamental
element of regime change beginning in the eighteenth century because only in
the eighteenth century did rulers have the capacity to print written
constitutions and have a citizenry capable of reading a written constitution. By changing the gun, the ship, and the
pen, technology changed the persons to whom rulers appealed when
mobilizing for war. Before the
Constitution was printed, the Bible was printed. The printed Bible altered the audience for
regal appeals. People learned to read
because there was something they had an interest in reading. Having learned to read the Bible, they could
learn to read other materials, most notably constitutions. The printed Bible altered how people
read. As people read the Bible, they
began to think they could interpret the Bible for themselves without the need
of priestly interventions. One result of
being able to read critically was the Reformation.
Another was liberalism. People
who could interpret the Bible for themselves began to think they could also interpret
political affairs for themselves. Liberals needed to be persuaded to participate in the warfare state. Liberal military service could no more be taken for granted than liberal attendance at Mass on Sunday. These changes in the subjects of ruling
appeals changed how rulers appealed when mobilizing populations and
resources for warfare. Rulers from the first Adam to Joe Biden have always had to mobilize people and resources for military
adventures. What was new in the eighteenth
and nineteenth centuries is that rulers often had to persuade liberal audiences in order to mobilize people and resources.
Rule had to be justified to a geometrically largely set of insiders and
outsiders. Liberal insiders in both proto-democracies
and more authoritarian states had to be persuaded at a minimum that they lived
in a coherent regime that could call on them to make military sacrifices. Liberal outsiders had to be persuaded that
this was the sort of regime that was entitled to rule internally. People had to see this state as furthering a set of interests that were partly determined by their liberal ideas about what interests and whose interests were to be furthered by states. Liberal ideas and military interests are entangled in ways
that rarely permit disaggregation. Politics
respond to interests, but how people perceive their interests depends on their ideas. Kristin Luker noted many years ago that while
pro-life policies served the interest of pro-life women and pro-choice policies
served the interest of pro-choice women, whether women adopted pro-life or
pro-choice lifestyles depended partly on ideas about the proper role of
women. Not everyone thinks spending the
morning writing this blog post is serves their interest. Written constitutions similarly combine military interests and liberal ideas. Rulers began writing fundamental laws down because they
had an interest in mobilizing people and resources for war, but how people are
mobilized depends on how they conceive themselves and their interests. Are people who live in my neighborhood
Marylanders or citizens of the United States and, if they are Americans, is
their American identity based on race or the principles of the Declaration of
Independence? As people became literate and liberal, their interests changed, and appealing to those interests meant understanding the ideas underlying those interests (and the interests that fortify those ideas). We cannot ignore or separate
ideas and interests when exploring the development of written constitutions or any other political phenomena. The bottom line lesson is that all scholars are in the position of the blind
sages who can see only parts of what they study. Professor Colley has seen far more of the elephant
than most. Her insights about the relationships between guns, ships, and pens are invaluable
to those who look at only a tiny part of the constitutional mammal and, more important, to
those who want to gain a greater if still incomplete understanding of what written elephants
as a whole might look like. Liberalism also matters to the study of written constitutions. If liberalism is partly constituted by guns, ships, and pens, guns, ships, and pens are also partly constituted by liberalism.
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |