Three arguments about war.

Author:Tsai, Robert L.
Position:IV. War Legacy: Values, Principles, Events through Conclusion, with footnotes, p. 27-59

    At times, certain ideas, principles, frameworks, or events associated with specific wars may be drawn upon to support a desired interpretation of the Constitution. Collateral claims about the normative significance of a war are best understood as war legacy arguments. Consider President Obama's September 25, 2012, speech before the United Nations, in which he addressed the anti-Islamic YouTube video that helped spark anti-American demonstrations and violence around the world. At the same time he denounced the slander of the prophet Muhammad, he also extolled the principle of free speech. Taking a page from FDR's playbook, (60) President Obama stressed that "Americans have fought and died around the globe to protect the right of all people to express their views, even views that we profoundly disagree with." The fact that lives had been sacrificed in the armed defense of freedom of expression served several goals. First, he established free speech as essential to the survival of "true democracy" (rather than some facsimile of self-government). Second, he suggested that worldwide sacrifice justified the trans-border reach of a principle sometimes thought to be an indulgence among Western countries. Third, his speech tried to foster an ethic of rights foundationalism--a sense that the state is obligated to protect some core of individual rights, perhaps because such rights even preexist the state. Obama then moved from discussing the armed defense of rights on the battlefield (in the past) toward the need to remain vigilant (today) to protect "the capacity of each individual to express their own views and practice their own faith" wherever that "threat" exists--"for our own people and for people all across the world."

    Unlike arguments deploying a live war as a general justification, which contain a presentist structure (whose future implications should be taken into account only later), war legacy arguments are simultaneously forward-looking and backward-looking. The past is interrogated to fashion a coherent vision for the future, such that a synthesis of [T.sub.1] and [T.sub.3] will tell us how to live our lives in the here and now ([T.sub.2]). As an argument, it is free to be ambitious while the general formulation must be constrained by exigency. What is important to the proponent is that the anticipated conclusion of a war presents the opportunity for reflection on the meaning of a war and the implementation of newfound legal commitments.

    For the most part, scholars have generally overlooked the prevalence and internal structure of war legacy arguments. (61) Phillip Bobbitt, for example, has identified only six legitimate constitutional arguments, and war legacy arguments do not neatly fit into any of them. (62) Those who have observed how the role that war can play in arguments often miss the ways in which war legacy arguments resemble or depart from more established constitutional arguments.

    War legacy arguments are a hybrid of historical and ethical arguments. They resemble historical arguments in that they draw upon some historical occurrence, but they are not strictly "originalist" in the sense that they must be confined to a singular moment of legal creation (say, 1789) or tethered to a particular act of legal writing. A legal actor might draw on the Revolutionary War, certainly (in which case the war legacy claim can accompany more traditional originalist arguments), but she might just as well draw upon the Civil War, the Great War, or World War II as armed conflicts yielding important legal principles. When this happens, a war's aftermath is presented as a moment of constitutional creativity. By focusing more on grand substantive principles, rather than the specific intentions of draftsmen, war legacy arguments mirror traditional ethical arguments about the purpose or function of a constitution.

    All war legacy arguments rest on the assumptions that wars can and should operate as engines for the production of normative principles. Wisely or not, such arguments insist that a sufficient degree of democratic reflection and shared sacrifice during wartime can generate something akin to popular consent for legal change. Some of these assumptions could be factually incorrect upon empirical testing, of course, but nevertheless all war legacy claims presume that a desirable degree of deliberation and consensus is theoretically possible. These legal principles might be already inscribed elsewhere at a high level of abstraction, as in the case with Lincoln's plea on behalf of racial equality (i.e., the Declaration of Independence states that "all men are created equal"). But many war legacy claims are not articulated with any degree of certitude, or even in any single place, leading to inherent difficulties in evaluating the claim of democratic consent implicit in a war-dependent argument and the proper scope of a war-derived principle.


      1. Lincoln and Racial Equality

        One of the most famous instances of war legacy arguments can be found in Abraham Lincoln's Gettysburg Address. It occurred after decisive battlefield developments--Robert E. Lee attempted a second invasion of the North but suffered such extensive losses that he was forced to retreat. Symbolically, after the bloodiest battle of the Civil War, the North believed the outcome to be a sign of impending victory. Even before there was any serious debate over the content of formal amendments to the Constitution, or even a formal end to hostilities, Lincoln laid the groundwork for major constitutional change. At the dedication of a cemetery at Gettysburg, Pennsylvania, he linked the Founding, which he called the birth of "a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal," with the war sacrifices of the Civil War armies. (63) Lincoln invoked the glorious dead, "those who here gave their lives so that that nation might live." (64) Instead of merely recognizing a past event, he urged listeners--"the living"--to join him in "unfinished work": erecting a more permanent memorial to honor those who fought, "a new birth of freedom." (65) Thus sanctified, the war would gain the power to remake the legal order.

        Looking ahead, the main legacy of the Civil War would have to be stable government dedicated to equality for all. Issued some ten months after the Emancipation Proclamation, the Gettysburg Address can be understood as an effort to pivot from fighting the war to rebuilding the legal order. Issued pursuant to his Commander in Chief authority over the field of war, the Proclamation's nascent assertions of racial equality needed sounder footing to survive. Initially, slaves were treated as "captives of war," with their war-time freedom resting on Lincoln's assertion of exigent powers to fight the seceding states as insurrectionists. But the Proclamation also made a forward-looking promise that liberated slaves "shall be forever free of their servitude and not again held as slaves." Could such a promise be kept? Only some lasting codification of war-inspired principles could fulfill this commitment, especially if orderly reintegration of the defeated states, too, was a priority. The Gettysburg Address can thus be considered an exercise in war constitutionalism, with the entrenchment of new constitutional principles begun through public oration and popular texts (e.g., newspaper coverage and editorials). Indeed, the Chicago Daily Tribune expressed confidence that the President's remarks "will live among the annals of man." (66) To be sure, speeches can begin, but not end in new constitutional commitments. Such sentiments must ultimately be codified in some authoritative legal writing. Lincoln would not live long enough to finish that work, but his appeal to building a war legacy initiated the constitutional process.

      2. Truman on the Right to Healthcare

        Similarly, consider Truman's speeches in the fall of 1945, upon Japan's sudden surrender. On September 6, 1945, Truman congratulated Congress for its hard work and then pivoted to another "great emergency" requiring "the same energy, foresight, and wisdom as we did in carrying on the way and winning this victory." (67) The reconstructive program he outlined included not only the demobilization of the military and the relaxation of economic controls, but also the advancement of an "Economic Bill of Rights" first articulated by FDR. That list included "the right to adequate medical care and the opportunity to achieve and enjoy good health." (68) Throughout, Truman argued that these rights were the fruits of the American people's labors during the war. "In this hour of victory over our enemies abroad," he urged listeners "to use all our efforts to build a better life here at home and a better world for generations to come" by elaborating these rights. (69) Two months later, Truman recast the right to health care as a universal right. "Our new Economic Bill of Rights should be mean health security for all," he insisted, "regardless of residence, station, or race--everywhere in the United States." (70)

        To be sure, like other affirmative rights, much would depend on the precise services, legal entitlements, and enforcement mechanisms created. But at the conceptual level and the level of dialogic mechanics, at least, we have all the hallmarks of war constitutionalism through presidential leadership: the president has proposed the establishment of a fundamental right and made the case for the right in part by arguing that post-war reconstruction efforts require its legal development. The method of implementing these constitutional changes remained uncertain: the right to "health security" at this stage sounded like one that will have to be fashioned legislatively, but it also could be taken as an invitation to judicial creativity in sketching such a right. And by linking the welfare of...

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