Incapacitating the state.

Author:Levinson, Daryl J.

TABLE OF CONTENTS I. The Risks and Rewards of State-Building A. Morgenthau Versus Marshall B. Anti-Federalists Versus Federalists II. Three Approaches to Managing State Power A. Political and Legal Control B. Incapacitation C. Control and Capacity as Complements III. Constitutional State-Building and State-Unbuilding A. Separation of Powers as Straightjacket B. The Imperial (yet Plebiscitary) Presidency C. Federalism: Incapacitation by Substitution Conclusion I. The Risks and Rewards of State-Building

The state is arguably the most powerful technology ever created by man. The invention of the modern state in Europe half a millennium ago revolutionized life for many on the planet. By consolidating control over the means of violence, the state imposed social order and provided its citizens with security and protection against both internal and external threats. (1) By securing property rights, enforcing contracts, establishing financial systems, and organizing markets, the state has facilitated economic growth and prosperity. And by providing collective goods like education, scientific knowledge, public health, and social welfare programs, the state has further improved the life prospects of its citizens and created new opportunities for human flourishing. Hobbes had a point: without the state, life for many in the world would be much more "solitary, poore, nasty, brutish, and short." (2)

Like other powerful technologies, however, the state can be used not just for good but for evil. Rather than investing in the human capital of its citizens, the state can subject them to totalitarian oppression. Rather than creating wealth, the state can confiscate it. The same control over the means of violence that can be used to keep the peace can also be used for mass warfare or brutal repression. Whatever else the modern state has accomplished, it is also responsible for the Holocaust and Stalin's Soviet Union.

Indeed, the modern state was originally invented and designed to kill. In Charles Tilly's memorable summation, "states make war and war makes states." (3) Engaged in perpetual warfare and desperate for resources to bolster their military might, European kings came to see that they could support large armies by extracting wealth from populations under their control and protection. (4) This led them to build bureaucratic infrastructures for the purposes of taxation and conscription of military manpower. (5) Eventually, kings figured out that by creating a legal system and supporting trade, they could increase their tax base and thus grow their resources for fighting wars and accumulating territory. (6) Over time, administrative capabilities built up for fiscal and military purposes found new uses, and the state provided additional public goods to meet the demands of its citizens and to ensure their ongoing cooperation.' At the end of this developmental road stands the modern state as we know it: capable of delivering the quality of life of contemporary Denmark; but also of North Korea.

Viewed as a technology of social organization, then, the state is a decidedly mixed blessing. Like other potentially valuable but also dangerous technologies--think of nuclear energy, biotechnology, or the Internet--the state comes with enormous upsides, but also with rather significant downside risks. We might call this the fundamental dilemma of state power: a state that is powerful enough to deliver valuable goods is also powerful enough to inflict great harms. (8)

The dilemma of state power is confronted both by those who live within the boundaries of the state and those who are outside of it. What we call "the state" has two faces, one international and one domestic. From an international perspective, the sovereign nation-state is the primary organizational unit of the Westphalian order. (9) From a domestic perspective, the "state" is synonymous with an institutionalized system of government that exercises compulsory control over a territory and a population. Both the international and domestic faces of the state can be friendly or threatening.

Internationally, foreign states are both potential enemies and allies; often both at once. The traditional realist view of international relations emphasizes the former, portraying sovereign states as above all else rivals competing for relative gains in economic and military power. (10) But states also pursue mutual benefits through various forms of cooperation, ranging from security alliances and cross-border trade to multilateral efforts to address global warming. Any sensible foreign policy, therefore, will balance the benefits of cooperation with economically or militarily powerful partners against realist concerns about relative power and vulnerability. This is how the fundamental dilemma of state power plays out on the international stage. Domestically, the dual examples of Denmark and North Korea should suffice to illustrate the dilemma posed by states with substantial control over the life prospects of their citizens.

Not surprisingly, then, we are often of two minds about state power. Sometimes we see states as an obvious good--so much so that we are willing to invest enormous resources in projects of "state-building." As has become increasingly clear in the post-9/11 world, "weak" or "failed" states not only threaten their own populations, but also export harms to people in other parts of the world. (11) The absence of effective state power can result in ethnic conflict, genocide, and famine; it can also breed global terrorist organizations, drug trafficking networks, and pandemic diseases. America's ambitious state-building projects in Iraq and Afghanistan are a testament to the perceived value of well-developed states. (12) So, too, are the investments of the international community in state-building as a strategy of economic development. In recent decades, the World Bank, the International Monetary Fund, and other development policy leaders have emphasized the importance of building political institutions capable of enforcing property rights and the rule of law, delivering education and health care, and performing other basic governmental functions that facilitate economic growth. (13) The catch phrases are "governance matters" and "getting to Denmark." (14)

But building powerful states is far from an unambiguous good. Certainly from an American foreign policy perspective, and perhaps also from a global humanitarian one, there are some states that are too powerful. Think of China today or the Soviet Union a generation ago. (Of course, many people in the rest of the world would think of the United States.) In fact, the very same states the United States is helping to build may someday evolve into threats. As much as the United States could benefit from strong and cohesive governments in Iraq and Afghanistan, it is far from clear that these states will be American allies rather than enemies. If Iraq emerges as a "Frankenstein's monster" of the Gulf, (15) as some fear, then the United States might look back on its state-building efforts there with some measure of regret.

State-building as a strategy of economic development also carries risks. The recent emphasis on strengthening political institutions is a striking reversal of the "Washington Consensus" that prevailed in the 1980s and 1990s. Driven by fears that a well-developed state apparatus would be used to suppress or distort free markets, development policy leaders had embraced the mantra of "privatize, privatize, privatize." (16)

In these and other contexts, the double-edged sword of state power makes state-building a questionable goal. Indeed, when the risks of state power are sufficiently great, state-building may be moving in the wrong direction; state-unbuilding might be the better course. Two historical examples illustrate the point.

  1. Morgenthau Versus Marshall

    The most celebrated state-building project of the twentieth century is the post-World War II Marshall Plan. The Marshall Plan is widely credited for the successful reconstruction of Europe after the devastation of the war, and, beyond that, for the lasting peace and prosperity of the Pax Europaea and the emergence of an economically and politically integrated European Union with Germany at its center. (17) At the close of the war, however, the rebuilding of Germany was far from a foregone conclusion. The best way to handle a German state that had displayed its belligerence twice in a generation and had just brought about global catastrophe on an unprecedented scale was by no means obvious. (18)

    Two competing positions emerged among President Roosevelt's advisors. State Department officials made the case for the economic reconstruction of Germany, along with the rest of Western Europe. (19) They argued that rebuilding European economies was crucial, not just for the well-being of the European people, but also for U.S. trade. (20) They also pointed out that an impoverished Europe would be fertile grounds for the growth of communism. (21)

    Treasury Secretary Henry Morgenthau, Jr. took a different view. His single-minded focus was to permanently destroy Germany's war making capacity. Morgenthau's "Program to Prevent Germany from Starting a World War III" included not just complete demilitarization, but also the destruction of the nation's industrial capacity and dismemberment of its territory. (22) Rather than rebuilding Germany, the Morgenthau Plan called for demolishing its factories, flooding its mines, clear-cutting its forests, reallocating strategically important territories to France and Poland, and dividing what was left of the country into two independent states, South and North. (23) The goal was to transform the remnants of Germany into a small, pastoral state populated by peaceful farmers. (24)

    This is the program that President Franklin Delano Roosevelt was initially persuaded to embrace. (25) (Roosevelt had fond memories of a bucolic...

To continue reading