Melville’s Billy Budd and Security in Times of Crisis

This is a shameless self-plug, but I feel guilty about it, so that makes it okay. My essay, Melville’s Billy Budd and Security in Times of Crisis, 26 Cardozo L. Rev. 2443 (2005), written for a law and literature symposium at Cardozo Law School, was recently published. I’ve placed a final version on SSRN. Here’s the abstract:

During times of crisis, our leaders have made profound sacrifices in the name of security, ones that we later realized need not have been made. Examples include the Palmer Raids, the McCarthy Era anti-Communist movement, and the Japanese-American Internment. After September 11th, this tragic history repeated itself. The Bush Administration has curtailed civil liberties in many ways, including detaining people indefinitely without hearings or counsel. These events give Herman Melville's Billy Budd renewed relevance to our times. Billy Budd is a moving depiction of a profound sacrifice made in the name of security. This essay diverges from conventional readings that view Billy Budd as critiquing the rule of law. Instead, Billy Budd supplies us with a radical and unsettling set of insights about why our leaders often fail to do justice in times of crisis. The novella suggests that by manipulating procedure under the guise of law, Vere gives the appearance of following the rule of law, when, in fact, he is not. This is particularly illuminating, as the Supreme Court in Hamdi v. Rumsfeld has held that normal procedures required by the Due Process Clause can be modified and watered-down for enemy combatants.

This essay is a quick light read for anybody interested in thinking about how Billy Budd relates to security and civil liberties.