Monday, November 09, 2015

Jeremy Kessler on The Myth of the Strong American State*

Mary L. Dudziak

This post is first substantive post in a roundtable based on a recent panel on Law and Ideology in the National Security State at the American Society for Legal History conference. [Editor's note: you'll find a great bibliography by following the links to this post.]

Jeremy Kessler, Columbia Law School

*With apologies to Bill Novak.

American legal scholars and historians generally connect the rise of the “national security state” after World War II to the expansion of executive autonomy over “national security” policy making. While the quantitative growth of the national security state from the mid-1940s to the mid-1950s is unquestionable, my forthcoming book, Fortress of Liberty: The Rise and Fall of the Draft and the Remaking of American Law, argues that the qualitative story of increasing executive autonomy is too simplistic. By treating the national security state as a monolith, the standard narrative misses the extent to which the federal judiciary constrained executive autonomy in certain sectors of the national security state, even as executive autonomy flourished in other sectors. Specifically, I propose that those “national security” agencies that sought to regulate the nation’s manpower fell afoul of the courts during the late 1940s and 1950s. Conversely, the executive wielded an increasingly free hand over less labor intensive “national security” functions, such as intelligence gathering, covert operations, and nuclear strategy.

They key difference was not varying levels of official secrecy (a concept still in its infancy), or varying assessments of institutional competence (manpower policy was, from the perspective of New Deal legal thought, a core area of administrative, as opposed to judicial, competence). Rather, I trace the judicial assault on executive control of national-security-related manpower policy to a mode of “anti-totalitarian” legal thought developed by conservative critics of the New Deal in the mid-1930s. Identifying themselves as civil libertarians, these anti-New-Dealers sought to displace an earlier understanding of civil libertarianism associated specifically with the New Deal and, more generally, with the creation of a pluralistic and economically egalitarian administrative state. Although initially and explicitly proposed as a means of constraining the redistributive aims of the New Deal, the “anti-totalitarian” vision of civil liberties law achieved bi-partisan support by the mid-1950s. Its emphasis on the judicial protection of individual rights to freedom of expression, procedural due process, and privacy appealed both to economic conservatives hoping to limit public regulation of the workplace, and to “liberals” anxious about the excesses of domestic anti-communism.

Even as Cold War politics drove the creation of new coercive institutions for regulating the nation’s manpower, such as a permanent “peacetime” draft and a federal loyalty apparatus, “anti-totalitarian” litigants, judges, and politicians rapidly undermined these institutions’ legitimacy. Presidents Truman and Eisenhower soon found themselves unable to use such institutions to further an expansive “national security” agenda, an agenda that sought to combine geopolitical dominance with health, education, and welfare reforms at home.

Continue reading below the fold.
In recent years, a number of scholars have recognized the role that Roosevelt-appointed judges played in limiting the autonomy of paradigmatic New Deal agencies – such as the National Labor Relations Board – in the name of civil liberties and civil rights. But with few exceptions, the assumption remains that national security administrators were generally immune from this legalistic rollback of the New Deal. Indeed, Ira Katznelson has explicitly formulated a dichotomy between the “state of procedures” that forestalled economically egalitarian domestic policy during the Cold War, and “the crusading state” that unleashed American economic and technological power against the communist threat. Such a dichotomy, however, neglects the hybrid nature of national security institutions, which must invariably exert governmental power both at home and abroad.

Beginning in the late 1940s, those national security institutions that exerted “too much” governmental power at home suffered from new judicial supervision and quasi-judicial procedures. The result was the degradation of the Cold War executive’s capacity to shape social and economic life in the name of national security, even as that executive gained increasing freedom to set foreign policy. This unequal distribution of executive autonomy within the national security state became disastrously clear during the Vietnam War, when the regulation of civilian and military manpower collapsed. Whether the war on terror and its controversial regimes of domestic surveillance and counter-insurgency represent the restoration of executive autonomy across the national security state, or rather a further narrowing of the meaning of “national security,” is a significant question that historical research can raise but not itself answer.


Our transition from a draft to a volunteer military really has not limited executive military power. So long as we have a large standing military which relies more on technology and firepower than manpower, the President can unilaterally wage small wars without a declaration of war/AUMF from Congress, then simply present Congress with the bill. Congress will pay the bill because it does not want to be accused of not supporting our troops in harms way.

Small wars can become long, medium-size wars as we saw in Korea and Vietnam.

Check out Wikipedia's "United States military casualties of war" at:

to compare "Small wars can become long, medium-size wars as we saw in Korea and Vietnam." with Afghanistan and Iraq wars, really, really long wars with less casualties. Is there some correlation between draft and volunteer military?



There is definitely a correlation between casualties and the soldiers' and population's willingness to keep fighting. See the American Civil War by 1865 and the Europeans in WWI by 1917.

There is some evidence that Americans lack the patience to wage long wars without clear victories, even when the casualty rate is smaller (Vietnam) or minuscule (Iraq/Afghanistan) compared to a major war like WWII.

Volunteers always have more dedication than an involuntary draftee. The question is whether folks will continue to volunteer in the face of heavy casualties or military reverses?


The question is whether folks will continue to volunteer in the face of heavy casualties or military reverses?

# posted by Blogger Bart DePalma : 5:01 PM

Or when they realize that the war is an idiotic waste of lives and money, like the Iraq Disaster.

The Korean Conflict started in 1950 (when I was in college and deferred from the draft) and ended in 1953 (when I was in law school and continured deferred until after graduating in 1954). There was no victory in the sense of WW II and American military are still stationed in South Korea. I was pointing to a comparison of casualties in this comparatively short war in contract with the lengthier Afghan and Iraq wars. During the Afghan and Iraq wars, to what extent did volunteers show more dedication than draftees in Korea where the casualties were much higher? Comparatively casualties have been kept lower with all volunteers that with draftees. That's the correlation I as inquiring about. During Vietnam, it was the draftees and those subject to the draft who challenged the wisdom of that war. To what extent, comparatively did the all volunteers challenge or question Afghan and Iraq wars? Over the years draftees have served America well.

By the way, I served in the Army as a draftee for two years in 1955-7, fulfilling my obligation in a time of peace before Ike got too many advisors in Vietnam.

That Wikipedia post lists virtually all American military encounters. The stats are interesting in making comparisons.

This comment has been removed by the author.

Shag: During Vietnam, it was the draftees and those subject to the draft who challenged the wisdom of that war. To what extent, comparatively did the all volunteers challenge or question Afghan and Iraq wars?

By definition, a volunteer will always be more dedicated to a war than a draftee forced into service and far more dedicated than a civilian threatened with a draft.

Once in the service, draftees are a mixed lot. Most will do their jobs. Some will half step. Others will rebel.

I come from a military family who all volunteered over the past five generations going back to the Spanish American War. I volunteered and I wanted volunteers around me in battle.

The nature of the wars was different as well.

A good chunk of the military who fought in Afghanistan and Iraq volunteered after the 9/11 attack on our nation. Vietnam never attacked us.

We won in Iraq and are winning in Afghanistan because al Qeada and the Taliban were pretty much on their own. We lost in Vietnam because we were fighting a nation state supplied by the USSR/China and never took the ground war to the enemy. The North Vietnamese just waited us out.

We won in Iraq and are winning in Afghanistan
# posted by Blogger Bart DePalma : 8:34 AM

LOL Winning what?

Our own MRO's (Macro 'Rhoidless One)"

"I volunteered and I wanted volunteers around me in battle."

fails to inform us that when he served in Iraq I, a relatively quick war with few casualties, he did not have draftees around him because it was then an all volunteer military. And what exactly is the significance of describing onesself as of a military family? I don't want the details, but I think of military families as making a career of the military. Our own MRO obviously did not make a career in the military, choosing the private sector as an attorney defending the rights of alleged drunk drivers. So what, if any, direct experience does he have regarding his views on draftees? And in Vietnam, many volunteers did not re-up, some, perhaps many, in response to Vietnam not being a good war (if any war is actually good). But one of the points I tried to make is that deaths/casualties in military ventures pre-all volunteer military were significantly greater that in post-draft military ventures. Korea or Vietnam had more deaths/casualties than Iraq I, Iraq II and Afghan wars combined. Is that because the all volunteer military was that much better? True, we didn't win in Korea or Vietnam, nor did we in Iraq II or Afghan wars, both long wars. Yes, warfare has changed. But the American public doesn't react as it did when more of their sons and daughters were at risk. The public seems to have accepted well the lower deaths/casualties but the lengths of wars have an economic impact. I'm not advocating reinstating the draft, but feel that the failure of the public to get into the debates before - and after - we get into a war is what permits the Executive and the Congress to go along as they do.

As to our own MRO's "Vietnam never attacked us."" neither did Iraq. And technically neither did Afghanistan where a group of elite Saudis planned 9/11.

Are our national security interests as in the Greater Middle East improved as a result of Iraq I, Afghan and Iraq II wars? Can we resolve the current turmoil on the relative cheap or do we have to invest risks to many, many military with large numbers of troops and at great expense without being assured that the situation will improve our national security interests? Will the American public support this?


Take a look at John Feffer's "Sprlinterland, The View from 2050" at:

looking back to 2015 as well as prior thereto, with what events lead to over the next 35 years. Feffer's long piece starts after a short into. Do we have an American Empire today? And what does history tell us about what happens to empires?


My only point concerning my military family was to note that volunteers prefer to fight with other volunteers.

Military families do not consist solely of career soldiers. Most simply do their bit for a tour or two before returning to civilian life.

FWIW, I was planning on being a career Army officer, but left when they were drawing down the Army in the mid-90s. I was training on computers and my men were not getting any training at all. Bad situation.

The casualty differential between Korea/Vietnam and Iraq/Afghanistan was because the former involved large conventional warfare against nation states, while the latter did not (with the exception of a couple weeks at the beginning of the Iraq War).

You make a very valid observation that it is politically easier for Presidents to go to war with our present volunteer military. The military is increasingly becoming a caste with the same families making up a fraction of the population sending volunteers generation after generation. The vast majority of the population is unaffected by war.

Al Qaeda is a network of loosely affiliated jihadi groups, not some monolith. Al Qeada was based in Afghanistan and Iraq. The al Qaeda group in Iraq before the was called Ansar al Islam and later morphed into al Qeada in Iraq. Iraq was also supplying a variety of other al Qaeda groups around the Middle East.

We do not need to carry on the war with Islamic fascism on our own. The better approach is to clear a sanctuary nation, build a local military to perform most of the security and leave a small, long term US residual force to support and supply the locals. After losing the victory in Iraq by pulling out completely, we appear to have learned our lesson in Afghanistan.

Iraq was also supplying a variety of other al Qaeda groups around the Middle East.

# posted by Blogger Bart DePalma : 4:39 PM



Educate yourself.

It's rather lame for our own MRO (Macro 'Rhoidless One) when challenged to cite his own analysis in support of his view that Iraq had a hand in 9/11. When one tries to pull one's self up by one's own bootstraps, one falls flat on one's face. Our own MRO constantly looks through piles of dreck for a a pony to saddle up in support of the Bush/Cheney invasion of Iraq that even most of the 2016 GOP presidential candidates concede, based on "what we know now," was a mistake.


My analysis of the captured Iraqi intelligence documents disclosing their terror state and alliance with various al Qeada groups is packed with links and citations.

Educate yourself.

And what of this was actually known - verified - when the Bush/Cheney Administration invaded Iraq based on various grounds in addition to WMD and mushroom clouds such as Iraq's role in 9/11.

By the way, our own MRO (Macro 'Rhoidless One) is not an educator in any realistic sense but rather a troll at this Blog. He is just a cherry-picker who ends up with the pits from his analysis.

Educate yourself.
# posted by Blogger Bart DePalma : 9:40 PM

Dumbfuck, reading your bullshit is the opposite of education. Hussein and Bin Laden were enemies.

Blankshot is a pathological liar.

Shag: "And what of this was actually known - verified - when the Bush/Cheney Administration invaded Iraq..."

Very little. Our pre-war intelligence was awful.

After we handed his ass to him during the conventional Persian Gulf War, Hussein shifted to an asymmetric warfare strategy - allying with the Islamic fascist movement to wage war against the US and our regional allies and to launch a guerrilla war if we invaded Iraq.

We invaded Iraq with a medium size conventional force and then were presented with a guerrilla war for which we were entirely unprepared. al Qaeda arrived in force planning to make Iraq for the Americans what Afghanistan was for the Soviets. It almost worked.

The Democrats took Congress in 2006 and were prepared to surrender Iraq to al Qaeda. In an extraordinary act of political courage, Bush reinforced Iraq during the Surge and put his faith in General David Petraeus's new counterinsurgency strategy. Petraeus turned the Iraqi Sunni against and drove AQI out of Iraq to win the war.

Very little. Our pre-war intelligence was awful.

# posted by Blogger Bart DePalma : 2:28 PM

More lying. There was actually plenty of intelligence indicating that there was no WMD in Iraq.

BB: There was actually plenty of intelligence indicating that there was no WMD in Iraq.

You can't prove a negative in intelligence gathering or anything else.


Blogger Bart DePalma said...
BB: There was actually plenty of intelligence indicating that there was no WMD in Iraq.

You can't prove a negative in intelligence gathering or anything else.

I never said that you could. I said that there was plenty of intelligence indicating that there was no WMD in Iraq. It's not the same thing, you lying sack of shit.

So with the 2003 invasion of Iraq by the Bush/Cheney Administration there was no evidence that Iraq was being 9/11. Strike one. And what was the evidence of a threat of a mushroom cloud? Strike two. Alas, there were many more strikes but Bush/Cheney kept batting because they controlled the national security state. But let Google "educate our own MRO (Macro 'Rhoidless one) regarding his:

"You can't prove a negative in intelligence gathering or anything else."

that this has been challenged so that it's not a slam dunk.

But our MRO's cite to himself as "Pamphleteer" was in 2008 and the pony he found has failed to undo the strikes of Bush/Cheney. Our our MRO with his "publication" seeks the coattails of the the Founders. But a more befitting name , I suggest, would be: 'PAMPERSPHLETEER."

So Iraq II started as a small war that become a long war, all under the watch of Bush/Cheney. Of course George W. and especially Dick C. have been trying to revise history with the aid of locksteppers like our own MRO.



You are welcome to offer any intelligence demonstrating that Iraq did not have WMD before the liberation.

Do you know what proving a negative means?

Do you know what proving a negative means?
# posted by Blogger Bart DePalma : 9:47 PM

Yes, I do. And "intelligence indicating that there was no WMD" is not "proving a negative", and you know that you lying sack of shit.

Apparently Blankshot still believes that there are little green men on Mars. You know. Because it's impossible to prove a negative.

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