THE SHIELD OF ACHILLES

by Bobbitt, Philip

  *Lincoln's multiethnic nation, founded on the principle of a nation of citizens—including African-American former slaves—was the antithesis of a European nation.

  *This concern for the welfare of the citizen was reflected in military matters: the first systematic use of battle dress to hide rather than advertise a soldier's presence dates from this period. In contrast, the state-nation's exaltation of sacrifice to the State had caused uniforms to reach their ornamental peak. The British adopted khaki for colonial campaigns in 1880 and for home service in 1902. The Germans went to field gray in 1910. See John Lynn, “Camouflage,” in The Reader's Companion to Military History, 68.

  *My colleague tax professor Calvin Johnson has reminded those of us who teach constitutional law of the crucial role taxation played in the framing of the U.S. Constitution. Indeed it was the failure of the Articles of Confederation to establish a revenue base that led to the Philadelphia proposal of 1789. But what were the taxes for? To wage war in order to defend the new American state against attack because that state faced potentially mortal threats on every front.

  *An alternative to finding the common basis for legitimacy in contemporary constitutional orders is to compare the constitutions of various states. Comparative constitutional law courses are usually paralyzingly boring; they typically consist of arid comparisons of the provisions of different written constitutions—which ones protect trial by jury, which ones have a bicameral legislature, and so forth. In this, comparative constitutionalism resembles comparative religion where the lecturer professes to think that the anthropologically collected dogma of a particular sect more or less sums up the content of religious faith. Such comparative constitutional law courses (and I dare say the comparative religion ones too) are lifeless because they lack the animating aspect of the subject being studied. With respect to constitutionalism, they lack its link between the common method of legitimation (unique to that era) and the different values that characterize different states. People do not sacrifice their lives to protect the electoral college. Nor do people make the sacrifices asked by religious faiths because they share deep convictions on any but the most basic theological matters.

  *See Plate IV, page 347.

  *¶20, Philosophical Investigations, 2nd ed. (Macmillan, 1958).

  †I should emphasize that such a transformation does not mean that the present U.S. constitution will be replaced. It has already weathered one such transformation in the constitutional order, that from state-nation to nation-state, and its underlying theory of popular sovereignty, personal liberty, and individual equality is perfectly compatible with the multicultural market-state. On some issues, though, such as federalism and the regulatory powers of Congress, it may be interpreted in the new archetypal context in ways that are more restrictive of government; while in others, notably national security, the power of the executive may gain. But none of these developments require a departure from the available constitutional arguments that currently make up American constitutional law, even if the outcomes of constitutional decision making were to undergo some considerable change.

  ‡“In a sense, the same world view that ultimately drove a reluctant President Woodrow Wilson to intervene in World War I was also the logic of intervention in Viet Nam.” Kai Bird, The Color of Truth: McGeorge Bundy and William Bundy, Brothers in Arms (Simon and Schuster, 1998); see Tony Smith, America's Mission: The United States and the Worldwide Struggle for Democracy in the Twentieth Century (Princeton University Press, 1994).

  *For this reason Part II was, until its final chapter, so “Eurocentric.”

  †Francis Fukuyama, “The End of History?” The National Interest (Summer 1989): 3. It is instructive to note that Hegel, from whom Fukuyama takes the electrifying phrase “the End of History” thought much the same thing when the state-nation triumphed at the battle of Jena.

  *Philip Bobbitt, Democracy and Deterrence, 20. The fiftieth anniversary of Hiroshima was accompanied by an intense debate over the rightness of the decisions to use atomic weapons against Japan. Utterly absent in that debate was the fact that there was no decision as such; that is, the use of these weapons was only the orderly continuation of a campaign of terror bombing that itself was only the continuation of the strategy of total war, the strategy of the nation-state. It is characteristic of the successor to that constitutional and cultural form that commentators should be asking whether or not the Japanese couldn't have been bargained into peace without the use of nuclear weapons. This sort of question is almost unintelligible in light of the struggle of the nation-state and its role in the Long War, but fits nicely within the assumptions and strategies of the market-state.

  *This point is well documented in Daniel Headrick's The Invisible Weapon: Telecommunications and International Politics, 1851 – 194510 and other recent scholarship.11

  *Louis Pauly, “Capital Mobility, State Autonomy and Political Legitimacy: Transcending National Boundaries,” Journal of International Affairs 48 (1995): 369. Karl Marx anticipated this when he wrote, “The bourgeoisie, by the rapid improvement of all instruments of production, by the immensely facilitated means of communication, draws all, even the most barbarian, nations into civilization. The cheap price of its commodities are the heavy artillery with which it batters down all Chinese walls, with which it forces the barbarians' intensely obstinate hatred of foreigners to capitulate. It compels all nations, on pain of extinction, to adopt the bourgeois mode of production; it compels them to introduce what it calls civilization into their midst, i.e., to become bourgeois themselves. In one word, it creates a world after its own image.” Karl Marx and Friedrich Engels, “Manifesto of the Communist Party,” in The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (W.W. Norton, 1978), 477.

  *U.S. projected revenue surpluses, for example, cannot survive projected Social Security expenditures unless that program is scaled back.

  *See Matthew Parris, a former MP, “Ministers pander to a misguided populace,” The Times (London), August 4, 2001. This shortfall in public opinion is by no means confined to the nation-state. The market-state too will have to contend with the fact that their publics also do not believe that the market should determine prices or wages or that anyone should profit from scarcity. Publics are often reported to think that increased productivity will increase unemployment. And there seems to be a consensus among the publics of many states that an immigrant should not take a job for which there is already a willing indigenous worker. See Parris, ibid.

  *Fascist nation-states, of course, made no such promise.

  *One way to chart the changes in the State is to note the way that the language of strategy has infiltrated nonmilitary organs of society. The use of terms like “campaign” in a political context dates from the era of the state-nation in which the nation was enlisted in the politics of the State. Now, with the emergence of the market-state, one can read books with titles like The Business Principles of Sun Tzu or The Leadership Secrets of Attila the Hun and even Elizabeth I CEO. A distinguished American judge and former law professor has gone so far as to describe Jesus Christ as a “moral entrepreneur.” Richard A. Posner, The Problematic of Moral and Legal Theory (Harvard, 1998), 42.

  *Quoted in William Poundstone, Prisoner's Dilemma (Doubleday, 1992), 28.

  *Successor states “succeed” to the rights and obligations of their predecessors; dissolved states do not.

  *Though, as is to be expected, his policies in office have been more nuanced and varied. Even in the campaign, the governor supported NAFTA and NATO.

  *As the Group of Seven (G-7) is known when Russia attends certain of the Group's meetings.

  *As opposed to violent clashes among the clusters as posited in Samuel P. Huntington, The Clash of Civilizations (Simon & Schuster, 1996).

  *See John Mearsheimer, The Tragedy of Great Power Politics (Norton, 2001).

  *I intend no allusion to the New Leader movement of the 1930s in Great Britain.

  *Secretary of State Madeleine Alb
right concluded as much when she addressed the issue.

  *Japan will, however, need more than 600,000 working-age immigrants annually to maintain its working-age population at year 2000 levels, and some 3.2 million annually to maintain its old-age-dependence ratio at 2000 levels. National Intelligence Council, Growing Global Migration and Its Implications for the United States (March 2001) NIE 2001 – 02D.

  *“[In 1996] 21% of immigrants [were] receiving welfare payments, compared to 14% of citizens. Not only [was] there a higher percentage of immigrants on the welfare rolls, but they [received] more welfare dollars per person than citizens.”2 Immigrants currently account for about 65 percent of the growth in population in most developed countries, up from 45 percent during the 1990 – 95 period. The numbers for the United States are especially dramatic. Foreign-born persons—about 30 million—now account for nearly 11 percent of the U.S. population; this represents a doubling of the foreign-born population in the last twenty years.

  *In the United States, immigration by the year 2000 was at its highest absolute level ever—about 1.1 million. The neglect of the Jordan Commission Report that called for modest decreases in immigration must in part be attributed to the market-state's eagerness to recruit new workers. The Jordan Report was the product of a presidential commission chaired by the late Barbara Jordan, one of the United States's most distinguished public figures. The report called for long-term adjustments in U.S. immigration policy—including a greater focus on skills-based immigration and a narrower definition of “family” for the purposes of family unification—in order to create a more sustainable policy. Jordan's untimely death probably removed the one figure with the moral status to address this problem. The final 1997 report of the Commission on Immigration Reform can be found at www.utexas.edu/lbj/ uscir/reports.html.

  †For a contrary view, see the excellent essay by James Kurth discussing Samuel P. Huntington, “Clash of Civilizations: The Real Clash,” The National Interest, 37 (1994): 3.

  *See Chapter 26.

  *In contrast to the nation-state whose principal alternative archetypes differed radically as to delegated sovereignty, that is, the powers and responsibilities assigned to the State (to control the market, social relations, etc.).

  *The Rumsfeld Top-Down Review in 2001 promised to redress these omissions and offer a broad reassessment. It quickly ran into formidable opposition from the services and from Congress.

  *Resulting in eight criteria for the United States to consider in deciding whether to support an intervention, an additional six restrictions for U.S. participation should American troops be involved, and a final three Weinberger criteria if there were a likelihood of combat.

  †(1) Defend against direct attacks on the U.S., citizens and allies; (2) counter aggression; (3) defend key economic interests; (4) preserve, promote, and defend democracy; (5) prevent the spread of weapons of mass destruction, terrorism, international crime, and drug trafficking; (6) maintain our reliability as an ally; (7) humanitarian purposes. Anthony Lake, “Defining Missions, Setting Deadlines: Meeting New Security Challenges in the Post–Cold War World.” Speech at George Washington University, March 6, 1996.

  *And evident also in the campaign against the Taliban.

  †Fred Iklé, “The Next Lenin: On the Cusp of Truly Revolutionary Warfare,” The National Interest 47 (1997): 9, 11. “Read any of the hundreds of Pentagon reports and scholarly articles on the coming Revolution in Military Affairs and you will find scarcely a thought about nuclear or other mass destruction weapons, save for a shy aside. To be sure, these writings contain fascinating points… about instrumented battlefields, where the commander can view on a television screen every piece of equipment belonging to friend or foe and give orders to every tank and foot soldier… Encouraged by the victory in the Gulf War, American strategists are now eagerly looking forward to the RMA—that is to say, their chosen RMA.”

  *I say misleadingly because the government retains the power of determining the use of such forces, as opposed to a true privatization, in which shareholders replace the government in the directing role.

  *On the threat of “asymmetrical” warfare, see the discussion in Chapter 27.

  †“Large and slow-moving aircraft carriers would give way to submarines and other stealthier ships that would deliver much more than a carrier's worth of precision-guided munitions. F-22 aircraft meant for dogfights would give way to long-range bombers and to unmanned aircraft not limited by a human being in the cockpit. Large and cumbersome Army divisions full of tanks and artillery would give way to smaller, lighter, more lethal and more agile formations. All this force would be stitched together by real-time, space-based information systems and applied in new ways.” (John Hillen, “Selling a New Armed Forces,” August 24, 2001, New York Times, A21.)

  *“The experience of working with Russia in Bosnia needs to be extended, deepened, and made part of the permanent security structure…”43

  *For a description of the work of The Inquiry, see Chapter 14.

  *Sometimes this term refers to the dissemination of propaganda; that is not how it is used here.

  *See the discussion of “central” versus “extended” deterrence in the Introduction.

  *See the essay by Peter Mancias in State Formation and Political Legitimacy, ed. Ronald Cohen and Judith D. Toland (Transaction Books, 1988), that observes of these remarks of Robespierre—Democracy is a state in which the people as sovereign guided by laws of its own making, does for itself all that it can do well, and by its delegates what it cannot” —that it is “brilliantly ambiguous, of course, and allowed… that all effective power could be located in the ruling clique of the Committee on Public Safety.” See also J. R. Pole, Political Representation in England and the Origins of the American Republic, (St. Martin's Press, 1966), 441.

  *Charles Krauthammer, to the contrary, makes the excellent, and to my mind persuasive, point that things were not in fact so much easier during the Cold War, in his “The Greatest Cold War Myth of All,” Time (November 29, 1993): 86.

  *And in three constitutional variants, vis-á-vis each state's people. These are discussed in Chapter 26.

  *President discusses budget in radio address to the nation, August 25, 2001.

  *State of the Union Address, January 29, 2002.

  †Address of the President to the Joint Session of Congress, February 27, 2001.

  ‡Inaugural Adress, January 20, 2001.

  *Thus, for example, the protection of the South Korean regime became a vital interest of the United States.

  *Bearing in mind that there are markets in more than things, e.g., markets in time, information, education.

  *Prior to the founding of the United States, sovereign governments were not bound by their laws. That is why the United States was the first modern state to have a written constitution.

  *“I saw that two or three men in the Senate and two or three in the House and the President ran the government. The others were merely figureheads… I had no ambition to hold office… because I felt… that I would fall short of the first place and nothing less than that would satisfy me.”1

  *A similar election campaign occurred in 1964 when the incumbent, President Lyndon Johnson, ran against the Republican senator Barry Goldwater. Critics of the American intervention in Viet Nam have often claimed that they were misled by Johnson's claims to have kept America out of deeper involvement in Asia when he was, at the time of the election, already contemplating more extensive U.S. troop deployments there. Like so much else regarding Johnson's presidency, these criticisms have more to do with the pathology of the period than with Johnson's motives. No one can deny that Goldwater's war aims and tactics (including the use of nuclear weapons) were considerably more interventionist than Johnson's nor that a responsible president must often prepare for war if he is to pursue peace. Wilson and Johnson each thought he could lead a nation into war by showing restraint, demonstrating that neither man desired war (which was in fact true). See Mic
hael Beschloss, Taking Charge: The Johnson White House Tapes 1963 – 1964 (Simon & Schuster, 1997). Once American troops were committed to combat, Wilson succeeded in uniting the country, as did Johnson for about the same period of time—and for no longer.