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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My earlier musing on this blog are finally turning into a book that puts war death into the history of the war powers. More particularly, I am taking as my point of departure Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War. During the Civil War, an intimacy with death and dying, and a close experience of war’s brutal after effects, would transform the United States, Faust argues, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” If the experience of war death was somehow constitutive of the republic itself during the Civil War, I have been puzzling over how American identity and politics might be affected or even constituted by its comparative absence.
Initially, I thought that all the important action in the story happens after World War II, and especially after Vietnam, when three developments isolate most Americans from the direct experience of war: the absence of a draft, the rise in military contracting, and changes in war technologies. But I’ve come to understand that the entire 20th century requires rethinking as a century of distant war.
There was deep and broad-based engagement of Americans in the two world wars, but geographic distance mattered to the politics of war declaration and authorization. In essence, distant war required a politics of catastrophe, in which presidents made decisions, and then waited for a disaster of sufficient proportions to generate political support to get strong backing from Congress for what had already been decided. Catastrophe didn’t generate a decision for armed conflict, but instead facilitated political mobilization.
This easily fits the Spanish American War, with a war declaration coming on the heels of public uproar over the sinking of the battleship Maine in Havana harbor, mistakenly attributed to the Spanish. And the World War II chapter of my War Time book illustrates the way this fits WWII (though I don’t develop this argument in that book). What was surprising to me was how well it fits World War I.
The important story comes before Woodrow Wilson sought a formal war declaration, in his failed effort to get an “armed neutrality” bill through Congress (which failed not due to the policy but due to Wilson’s political missteps). The bill would have enabled Wilson to arm merchant ships that would, in certain areas, fire upon German U-boats without warning, and would have certainly launched the U.S. into the war. Amid continuing reports of sunken ships and American deaths, Wilson had announced that an “overt act” by Germany would move the United States closer to war. Wilson, his close advisers, and the press then contemplated whether particular sinkings were the “overt act” he had in mind. Ultimately the “overt act” was the sinking of the Laconia, with only three American deaths. Wilson used the incident to build political momentum. Biographer Arthur Link wrote that “Wilson’s decision to capitalize on the incident was apparently part of his strategy for focusing public pressure on Congress.” Others were puzzled, since many more were killed in previous incidents that had not been the magic “overt act.” This illustrates an important role of catastrophe in war politics. The terrible event doesn’t always lead to a new policy. Instead, a catastrophe is needed for political reasons: to generate support for a decision already made. And catastrophe itself is defined by politics, not by the event itself. Public opinion scholar David Berinsky has written that “the facts of war do not speak for themselves.” Neither do the facts of catastrophe.
I am continuing to work this out. In the meantime, if you are in the SF Bay Area and want to see how it all turns out, my David M. Kennedy Lecture on the United States and the World, May 12 at Stanford, will be on The Politics of Distant War: 1917, 1941, 1964. You can RSVP here. I'll give a similar lecture at the University of Washington on May 21. Posted
by Mary L. Dudziak [link]