War Powers: An Essay on John Hart Ely\u27s \u3cem\u3eWar and Responsibility: Constitutional Lessons of Vietnam and its Aftermath\u3c/em\u3e

A Review of War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath by John Hart El

Youngstown: Pages from the Book of Disquietude

Part of symposium: Youngstown at fifty: a symposium

Waging War Against Terror: An Essay for Sandy Levinson

Wars are acts of State, and therefore there has never been a war on terror. Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda\u27s global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state\u27s control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states wished to press such a condition on us and because our global vulnerabilities could not be detached from our prosperity and freedom. Professor\u27s Levinson\u27s warning must therefore prepare us not only for the aftermaths of an attack by al Qaeda, but also for attacks mounted by twenty-first century terrorism of which al Qaeda is only a herald. Just as terrorists in earlier centuries mimicked the states they were struggling against, so terrorists in the twenty-first century will copy the decentralized, devolved, outsourcing and privatized market-state of the twenty-first century, instead of modeling their activities after those of the national liberation groups of the twentieth century that fought nation-states

For Eugene Rostow

The two-handed saw is a foresters’ instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life. Was he unyielding for just a moment when giving in would have spared him? Did the other man pull too hard, throwing Gene off balance despite his strength, or push to an extreme that was unnatural for Gene? You see, it takes a certain unyieldingness to insist that Japanese Americans not be interned after the devastating military and psychological blow at Pearl Harbor. Only someone with a strong frame could possibly resist the near-universal pull of public and governmental opinion. There was a certain fierce dignity in Gene’s contempt for racism, not unlike that of the colleagues he recruited to Yale – Charles L. Black, Jr., of course, but also Grant Gilmore, Boris Bittker, Myres McDougal, and the young Guido Calabresi – who made the Yale Law School a strong redoubt for civil rights

Constitutional Fate

The Mary Ireland Graves Dougherty Lectures in Constitutional Law were established in 1979 at the University of Texas School of Law in the memory of Mrs. Dougherty by her family. Professor Bobbitt delivered the inaugural series of these lectures on three evenings in April 1979. Of those in attendance, only Professor Bobbitt\u27s students, who had witnessed the evolution of his ideas during that year, and a few colleagues with whom he must have shared his thoughts, could have expected what followed on those spring evenings in Austin. His subject was the question of judicial review. So stated, the subject hardly appeared to be fresh. For those students in attendance, however, whose pursuit of constitutional mysteries had been limited to little more than dubious meanderings along the doctrinal trails of the United States Reports, Professor Bobbitt brought a new perspective on the Constitution and on constitutional law

Parlor Game

The Constitution is not perfect. Indeed I don\u27t know what \u27perfection\u27 is in a constitution, since it is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of is that \u27perfection\u27 does not mean \u27never needs to be amended,\u27 since one important part of the Constitution is its provision for amendment (although I am inclined to believe that few of the amendments to the U.S. constitution were actually necessary.) That said, a competition to find the stupidest provision of the Constitution is, to my mind, about the most vapid essay contest to come along since MTV listeners were asked to suggest names for a new litter of puppies owned by a heavy metal performer. As anyone who has been around dogs knows, their names have to do with their individual natures, and the relationships they have with each other, and with their masters. Naming them in the abstract is idle, a parlor game maybe, or perhaps appropriate to cats (whose character, if they have any, is opaque to humans.) The Constitution functions as an organic whole. All the forms of argument-historical, textual, structural, ethical, prudential, doctrinal-entirely depend on this principle. One cannot begin to construe correctly the commander-in-chief power without bearing in mind the Congress\u27s power to appropriate money for the armed forces; nor can one adequately construe in any concrete case, the Congress\u27 power to declare war without squaring it with the Executive\u27s power to deploy troops where he, and he alone, thinks best. Remove one part of the Constitution and you change another. In a mature democracy these relationships are sufficiently complicated and well-developed that any particular change is likely to have a number of unanticipated consequences, including, often enough, a result conflicting with the campaign by which the amendment was secured in the first place

America’s Relation to World Order: Two Indictments, Two Thought Experiments, and a Misquotation

The State is undergoing a crisis of legitimacy owing to its inability to cope with novel problems of weapons proliferation, transnational threats including climate change, a fragile global financial infrastructure, cultural influences carried by electronic communications, and an undemocratic regime of human rights law. These fatal inadequacies are summoning forth a new constitutional order, the latest in a series of century-spanning archetypal regimes that have arisen since the Renaissance and the collapse of feudalism. A backlash against the harbingers of this new order, however, is crippling the development of those modes of action that are required to deal with the underlying crisis. In the United States, this crippling reaction has operated in tandem with a formidable critique of America’s right to lead an international order that has brought unprecedented prosperity and low levels of warfare to the world. This backlash is as much a reaction to the critique of the United States’ political and cultural heritage as it is to the governing techniques that are harbingers of this new constitutional order. Only a restoration of faith in America’s constitutional and strategic heritage — its exceptional ethos — will make possible the preservation of liberal traditions of governing in the new world that is being born. To accomplish this, we must answer the critiques by identifying what is the animating American quality that entitles the United States to compete for leadership

A Reply to Professor Ball

Although it has been observed that approaching an allegedly universalistic theory by asserting the time- and culture-bound nature of that theory is an attack of some sort, Professor Ball does not take my lectures to be a rebuke to the enterprise in which he, Professor Tushnet, and others are engaged. Instead, he complains that I do not examine the relation between constitutional argument, on the one hand, and, on the other, social, political, and economic interests. This is a mistaken reading of my work. It is nice to be told that Tushnet and Ball accept my formulation that in our theories are our fates and that they go on from there, but if they really accepted my formulation they would accept the bankruptcy of going on from there. For the point the formulation tries to achieve is that theoretical requirements have driven law; that judicial review is legitimated by these theoretical moves and not by what are thought to be more fundamental social and class motives; that the vocabulary of social and economic interest is itself just one more set of theoretical conventions, and, indeed, one of little relevance to constitutional decisionmaking; that the constitutional types of argument are not determined by political and economic theory