Thursday, September 16, 2010

More on War, Time, and Social Change

Mary L. Dudziak

There has been quite a lot of scholarship on the impact of wartime or crisis-time on American law and politics.  My work, which I've blogged about here before, takes a step back and examines our ideas about "wartime" itself, arguing that ideas about the temporality of war are a feature of American legal and political thought.  The original paper, Law, War, and the History of Time -- which I received helpful comments on from Balkinization readers -- is forthcoming in the California Law Review, and I am expanding it into a short book.  Along the way, I have this new paper. 

The reason I decided to write about the Cold War is that legal scholars who discuss the Cold War have different, but often unexamined, ideas about what, and even when, it was, and there is generally a disconnect between the Cold War of legal scholarship and the Cold War of diplomatic history.  The Cold War's ambiguity was a feature of the post-World War II years themselves, so that when the last Cold War casualty was laid to rest, he was remembered with an ambiguous headstone in Arlington National Cemetery, which reads: “Killed in East Germany, U.S. Military Liaison Mission.”  According the the Veterans of Foreign Affairs Magazine:  “No mention is made of who killed him or why he was shot....This is reflective of how many Americans who preceded Nicholson in death during the Cold War are remembered.”  The ambiguity that cuts through American thinking about the Cold War helps to obscure the nature of American war during these years, characterized by "small wars," with one conflict melting in to the next, yet with most Americans insulated from their impact.

So here's the new abstract:

Unlimited War and Social Change: Unpacking the Cold War's Impact
This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within this framework, viewing war as exceptional. This conception of war does not capture the predominant nature of American war, at least since World War II, characterized not by cataclysmic battles and great military victories, but by “small wars,” surveillance, and stalemate.

The ambiguity of the Cold War might have signaled that the conventional categories no longer fit – that wartime and peacetime coexisted or had melted together. But rather than viewing the Cold War years as rupturing the older categories of war and peace, contemporary thinkers find ways to fit the experiences of that era into pre-existing conceptual boxes. The Cold War becomes for some writers a “wartime,” complete with a dramatic ending.

This paper examines historical and contemporary thinking about the Cold War. Turning to scholarship on war and rights, my focus is not on the way particular rights or lines of case law develop, but instead on the way writers conceptualize the world within which rights are framed. Ultimately I argue that a wartime frame persists in our thinking about the Cold War, and this obscures our understanding of the impact of war on domestic law and politics. It reinforces the idea that war is a discreet historical experience, and that “peacetime” is the norm, when instead ongoing limited war has become the American experience. The years of the Cold War are one moment in a longer pattern of ongoing war.
I will open up comments -- since readers have had such great comments on previous posts that I thank Balkinization readers in my new article. But I am on my way overseas, so I may not have a chance to respond.


Best of luck with the book. I look forward to reading it, but could we please (pretty please?) lose this "unpack" trope?

I have downloaded Mary's new paper and plan to read it in the next day or so. I was born in 1930, had vague recollections of the Great Depression, but remember well Pearl Harbor and WW II (for which I was too young to serve in), I remember the Korean Conflict during which I was in college and law school with deferments, and served in the military as a draftee as a "post-Korean, pre-Vietnam veteran," as a result of which I did not get called during the Vietnam War. The Cold War did not find me ducking under my desk or looking under my bed for communists. And then we had a bunch of post-Vietnam flare-ups permitting several Presidents to make their Commander-in-Chief bones. But I was also impressed by the fictional "The Mouse That Roared," a movie comedy starring Peter Sellers. The Cold War and post-Vietnam flare-ups I look back at as variations on the theme of "The Mouse That Roared," including now the war in Afghanistan. But these variations are not funny, although the situation in Afghanistan could use a Joseph Heller "Catch-22" fictional account perhaps to get at the truth.

With the Great Recession we learn (actually relearn) from economists that it was WW II that pulled America out of the Great Depression. So perhaps America's economy, and that of the rest of the world, revolves around, depends upon, wars, both large and small. Then I think of Joseph Schumpeter's creative destructionism of capitalism and wonder if it applies to these wars. (I also think of Ike's 1960 farewell address warning us of the military industrial complex, a warning that hasn't been effective.)

So on to Mary's new paper on the Cold War. But will my afghan provide comfort?

What bothers you about the "unpack trope," John?

I enjoyed the "The Mouse That Roared" -- the books in particular; the third had an amusing scene that seems appropriate today: inflation didn't quite faze a local politician until it hit him where it hurt: at the bar.

I welcome this "psychological" (if that is the right word) approach; originalists should appreciate this too, since to get a true sense of original understanding, the sense of what people of "the time" thought, which is not the same as ours, is necessary.

To insert an off topic comment, does anyone here download SSRN or the like articles on Kindle or any such device? If so, does it work well?

This draft chapter was a great read for me, especially since I lived through the period of WW II to now. I wonder how a younger reader - say, 30/40 years of age - would react to this draft chapter, relying upon history alone.

WW II was of course the "good war" fought by the "greatest generation." But Korea was a "police action," not a war declared by Congress. Back then we knew of the constitutional role of Congress to declare war from our civics studies. But many Americans "accepted" Truman's UN action as appropriate despite the lack of Congress' declaration of war.

While the Korean conflict is often described as the "Forgotten War," I recall the term "suckers' war" in my early 20s: it was relatively easy to avoid being drafted, usually with an educational deferment. The availability of the GI Bill for WW II veterans opened doors not only for them but also for non-veterans as higher education expanded significantly after WW II, making more room for non-veterans such as myself. Since my older brother served in WWII in its closing days, he was eligible for the GI Bill, making it easier for my family to accommodate my higher education. I have noted at this and other blogs over the past several years that the most tuition I paid was $400 for my 3rd year - '53-'54 ' of law school, as a commuting student living with my parents.

Many reservists were caught up in the Korean conflict; and many of them had served on active duty during WW II without being in combat and had been lulled into the reserves following discharge from active duty on promises of beer drinking at summer camp for two weeks plus weekly meetings with fellow reservists/buddies. Several from my Roxbury neighborhood who had served late in WW II and did not see combat signed up for the reserves not expecting that they would ever be called up for active duty; they cursed the local Marine recruiter who had sold them on the reserves on the basis of camaraderie.

(To be continued.)

Mary's description of the public relations "selling" of the Korean conflict at the end of this draft chapter is most revealing as I at the time "accepted" that President Truman had done the right thing, without the need for a declaration of war by Congress. Of course, I had my deferment from the draft and like most Americans did not have to make personal sacrifices. In recent years, the need for such a declaration - Afghanistan/Iraq - has been discussed extensively but remains constitutionally unresolved.

In my initial comment before reading Mary's draft chapter, I made reference to the movie "The Mouse That Roared." Mary's penultimate (my favorite word) paragraph of this draft chapter makes reference to cinema and war, closing with this: "What matters is not dynamics on the battlefield, but the perceptions of war at home." Then in her closing paragraph, Mary teases us: "This dynamic would prove to be important in the early years of the twenty-first century, when buildings fell in Manhattan, and an American president declared war on terrorism. Bu that will be the topic of my next chapter." I look forward to that chapter.

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