University of Pennsylvania Law Review
May 1991, Page 1257
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WAR AND THE SOCIAL CONTRACT: NUCLEAR POLICY, DISTRIBUTION, AND THE RIGHT TO BEAR ARMS
Elaine Scarry *
Copyright 1991 by the University of Pennsylvania; Elaine Scarry
"Every nation," wrote Kant, "must be so organized internally that not the head of the nation--for whom, properly speaking, war has no cost (since he puts the expense off on others, namely the people)--but rather the people who pay for it have the decisive voice as to whether or not there should be war." [1] He then added in parenthesis: "Of course, this necessarily presupposes the realization of the idea of that original contract." [2] This exercise of the population's voice, and with it, the affirmation of the social contract, is partly ensured in conventional war by the fact that the population is carrying the guns. Hobbes acknowledged the military as the final test point of consent when, in Behemoth, he wrote: ": I f men know not their duty, what is there that can force them to obey the laws. An army, you will say. But what shall force the army?" [3]
Kant asserted that war ought to be consensual; Hobbes asserted that war is consensual. When both the "ought" and the "is" are held visibly side by side, they together make clear the extremity of the dissolution of the social contract that comes about when a new form of weapon is invented that is wholly independent of the population's authorization. Everyday life continually puts before us the claim that in the emergency of war, when our own survival is at stake, some of the operations of consent have to fall away because of the speed required to respond. But in contract theory in general--as well as in one very specific social contract, the United States [Page 1258] Constitution--provisions are made so that consent and the express act of contract become more explicit, not less explicit, at moments of war.
The fundamental logic of Locke's consent theory was to differentiate societies brought about by contract from those brought about by "force of arms." [4] Thus, if within a contractual society an occasion arises that necessitates the use of arms, the licensing of those arms must be explicit precisely to ensure that the society does not at that moment begin to shift back into the very blur of coercion that the contract replaced and from which it sought to distinguish itself. The consent of a people ought to be more express in entering war than at almost any other time both because of the adversity the war will bring (the bodies of the population are subject to the risk of great injury) and also because the existence of the nation (the elemental social pact) is itself at risk. The deliberation and slowness with which a contractual society ought to go to war is described by Justice Story:
War, in its best estate, never fails to impose upon the people the most burdensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. . . . It should therefore be difficult in a republic to declare war; but not to make peace. [5]
What prompts Story to write this passage is article I, section 8 of the Constitution which--by requiring from Congress a formal declaration of war-- provides within our own social contract the highly self-conscious, overt act of consent that contract theorists insisted upon. [Page 1259]
The declaratory power was given to Congress, rather than to the President or to either the House or the Senate acting alone, to ensure deliberation: the reasons for going to war must prove persuasive enough to hold up under the scrutiny of the large numbers of persons who together make up the House and the Senate. The deliberative process is not private and introspective; it is public, open to view, and subject to debate and constant challenge by all assembled. Though it is difficult and time-consuming to convert hundreds of representatives from uncertainty to the decisiveness required for a declaration of war, this very unwieldiness was saluted as a great virtue at the original constitutional convention, [6] and again by later jurists who, like Story, argued that a country must be slow to go to war but quick to attain peace. [7]
The longstanding United States strategic policy of presidential first-use of nuclear weapons [8] is starkly incompatible with the [Page 1260] country's constitutionally mandated requirement for a congressional declaration of war. But the gravity of the country's present nuclear arms policy only emerges fully into view when article I, section 8 is seen in relation to a second consensual site available to the population in conventional war. Even if a society should fail, through its congress or parliament, to engage in an explicit act of consensual declaration, the act of calling upon the population, the call to arms, itself requires--as Hobbes reminds us--a direct courting of the population's consent. [9] In conventional war, a population's authorization of war is ongoing in that authorization occurs both at the threshold and at the interior of war.
The consensual practice at the threshold becomes visible by inversion in eras when those drafted have refused to cross over the entry way. Alexander Bickel wrote that "the waging of war needs [Page 1261] continuous political support [and] it is subject to a continuous round of informal referenda." [10] During the Vietnam period, the reflexes of consent were exercised and steadily sharpened. The antiwar movement, he wrote, succeeded in "toppling a sitting president, in the midst of war, in 1968, before a single national vote had been cast." [11] For Bickel, it is the very quality of constraint in the draft that insures ongoing scrutiny of the war:
A democratic state which fights with a conscripted popular army, as most states like ours have done since the French Revolution, will do so effectively with difficulty when a large and intense body of opinion, particularly among those of fighting age, resolutely opposes the war on moral and political grounds. A conscripted army requires more than majority political decision to fight a war . . . . [12]
That display of consensual powers at the threshold has also been visible in other eras. The first federal conscription bill, issued by Abraham Lincoln, at once gave rise to the 1863 Draft Riots in New York City, and similar, if much less fully documented, outbreaks of draft resistance, riot, or near-rebellion are said to have occurred in Boston and smaller towns in New York, Pennsylvania, Illinois, Indiana, and Ohio. [13] Still earlier, toward the end of the War of 1812, the draft had been proposed by the Secretary of War. It never left the proposal stage because it was strongly resisted as unconstitutional. [14] [Page 1262]
As the exercise of the population's authorization can be seen at the threshold, so it can be seen in the interior of war as well. [15] Those who enter the war continue to exercise, on a day by day basis, their power to give or to withhold consent. Again the photographic negative--the withdrawal of consent in the actions of mutiny or rebellion--bestows clarity on the soldiers' more ordinary acts of cooperation and participation. Here is one such photographic negative, an irregularity in the rhythm of artillery fire in World War I France:
Promptly at ten the next morning the artillery bombardment resumed--only to be checked immediately by a peculiar incident. In the fields surrounding the barracks were nearly a thousand horses which had not been fed for twenty-four hours. Now the rebels herded them together and drove them riderless down the road to the town of La Courtine . . . . [16] [Page 1263]
For a few hours, the road necessary for all communication and travel was clogged with the thousand newly wild horses, before they could be "collected and put out to pasture by the French. [Then t]he artillery began again." [17] The interruption of the guns, the irregularity in the rhythm of the noise, is the acoustical signature of the soldiers' will, the audible registration of the sheer materiality of men and horses running beneath and controlling the gunshot fire above. It is one of many volatile events from the 1917 mutinies in France, a narrative of "avalanching" soldiers' strikes reconstructed in the diaries and speeches of military and political leaders: "The troops refuse to go into the trenches," reported Colonel Herbillon, a military-liaison officer to the government, "order is menaced everywhere. The fever is extending itself." [18] B.H. Liddell Hart wrote that "cases of desertion in the French Army rose from 509 in 1914 to 21,174 in 1917." [19] There were mutinies in sixteen different corps, "and in places the trenches were scarcely even guarded." [20]
Germany had a shadow analogue in the naval rebellion of 1918 and the earlier mutinies in Kiel and in Wilhelmshaven. [21] What began with the refusal of the German fleet to be ordered out against the British quickly spread and became, according to Liddell Hart, [Page 1264]
"the uprising of the German people against the leaders who had led them into disaster." [22] And among British troops, strikes, resistance, and marches of protest occurred in 1919 in Folkestone, Dover, Kent, London, Sussex, Hampshire, West Country, Salisbury Plain, Wales, Scotland, Canada, France, and (more mildly) India. [23] The soldiers, wanting to be demobilized, refused to carry out what they correctly perceived to be Churchill's next plan, the invasion of Russia to support the Whites against the Bolsheviks. [24]
Like the wild horses on the La Courtine road, civilians and soldiers periodically obstruct the road to war, interrupt it, clog it, even bring it to a close. [25] These historical instances of obstruction, both at the threshold of war (United States draft resistance in 1812, the Civil War, and the Vietnam War) and at the interior of war (World War I in France, Germany, and Britain) [26] are recited [Page 1265] here not to portray conventional troops as primarily mutinous. On the contrary, the United States did pass over the threshold into the War of 1812, the Civil War, and the Vietnam War. France, Germany, and Britain, along with other countries, did over countless weeks, days, and years sustain the interior of World War I. But they did so only with the assistance of their populations. The photographic negatives make it clear that without that willing fighting, the war cannot be fought.
Military leaders, by their constant insistence on the strategic primacy of "morale," have always acknowledged their absolute dependence on the consent of the soldiers. [27] Civilian leaders, too, have recorded that dependence. Churchill, writing to Lloyd George of his desire to carry out the 1919 "intervention" in Russia, continued: "But unfortunately we have not the power--our orders would not be obeyed, I regret to say." [28] Similarly, in response to the French mutinies in 1917, the leadership of France acknowledged that the war was becoming unfightable: " T here had never been anything like May 20! We seemed absolutely powerless. From every section of the front the news arrived of regiments refusing to man the trenches." [29] The War Memoirs of Lloyd George record the early May conference between Petain and himself during which Lloyd George expressed his recognition that French fighting power had become stalled not by a disability but by a refusal: "No, General . . . with your record I could not make this mistake of thinking you can't fight , but I am certain that for some reason or other you won't fight." [30] Military leaders, civilian leaders, recruits, and soldiers thus share the recognition that conventional wars are fought only with the authorization of the population.
The constitutional protection of the population's direct authorization of war is the subject of this Article. The kind of consensual act Kant imagined--the deliberate assembling of the representatives of the people for a voiced affirmation of war--is provided for in the country's Social Contract in article I, section 8, [Page 1266] which stipulates unequivocally that Congress, not the President, has the obligation to declare war. It might appear that the second, Hobbesian form of consent would, in contrast, have no specifiable doctrinal location in the Constitution. This second species of consent appears to depend on the technical attributes of the guns themselves: because they must be carried onto the field by persons, the leaders must address the population and persuade them to carry those guns. With nuclear weapons, this requirement disappears: because there is no longer any need for the population to carry the arms, there ceases to be the need to elicit the population's consent, either at the opening of war or throughout its duration. Thus, the ordinary features of argument and citizenry are no longer needed or available.
While it might well have been the case that this second genre of consent would be left unprotected by the Constitution, [31] this Article argues that it is not the case. This critically important [Page 1267] consensual requirement has its doctrinal location in the second amendment. Both article I, section 8 and the second amendment ensure the integrity of the social contract at the moment of entering war; both protect against the concentration of military power in the Executive; both are incompatible with our standing arrangements for presidential first-use of nuclear weapons. The incompatibility between a constitutionally mandated congressional declaration of war and the country's longstanding nuclear arms policy is not the subject of the present article because it already has a sturdy place within arguments about nuclear weapons. It has been the subject of articles within both nuclear discourse and legal discourse. [32] In addition, those arguments have begun to enter into the formulation of cases that are now going into court to oppose presidential first-use of nuclear weapons. [33] The focus of this Article is instead the [Page 1268] way the second amendment supplements and reinforces article I, section 8 in the arguments against the United States strategic policy of presidential first-use.
I. THE RIGHT TO BEAR ARMS: AN ARGUMENT ABOUT DISTRIBUTION
The second amendment, the right to bear arms, tends to enter our consciousness through claims about why criminals should be allowed to walk around with pistols. Alternatively, it emerges there through arguments made by gun clubs or even neighborhood watch groups who urge that there should be no state laws preventing us from carrying guns for hunting, for recreation, or for self-protection against the criminals carrying pistols.
But the second amendment is a very great amendment, and coming to know it through criminals and the endlessly disputed claims of gun clubs seems the equivalent of our coming to know the first amendment only through pornography. Freedom of speech may or may not protect pornography; but it would be difficult, probably impossible, to infer the monumental scale and solidity of that amendment from this one solitary inflection in its surface. The same is true of the right to bear arms. The history of its formulation and invocation makes clear that whatever its relation to the realm of individuals and the private uses they have devised for guns, [34] the amendment came into being primarily as a way of [Page 1269] dispersing military power across the entire population. Like voting, like reapportionment, like taxation, what is at stake in the right to bear arms is a just distribution of political power.
When I speak here about a distribution of arms, what I mean is a distribution of authorization over our nation's arms. It is crucial to understand that the argument that follows about distributing arms does not express a hope that we can all have guns. It is rather to say that if as a nation-state we are to have injuring power, the authorization over the action of injuring (as well as over the risk of receiving injury in return) must be dispersed throughout the population in the widest possible way. How much injuring power the country should have is a wholly separate subject. Some believe we should have none; many believe we should have a great deal. The argument here does not touch that question; it is prior to it. [35] [Page 1270]
However much injuring power we have, like all other forms of political access, it must be spread throughout our entire numerical expanse.
Only four Supreme Court rulings have centered upon the second amendment, three in the nineteenth century and one in the twentieth. [36] Those rulings are not incompatible with an interpretation emphasizing distributive justice, since they together stress collective rather than exclusively individual rights, and military responsibilities rather than recreational uses. But the cases are muddled. The country stands in need of a major Supreme Court reinterpretation of the second amendment. [37] If the Court were to [Page 1271] follow a distributive interpretation, its reading would be supported by the key attributes of the right to bear arms. Each of these basic attributes in isolation illuminates the contemporary problem of arms. Together, they display an unexpected portrait of the deep structure underlying "contract" and "force." That structure, gradually emerging in the present section of this Article, will be unfolded in the final section. It will in the end become clear why illegal authorization of nuclear weapon use is not a simple constitutional misdemeanor, but a constitutional deformation of the most serious kind.
A. Distribution, Ratification, and the Bill of Rights
The first argument centers on the form rather than content of the right to bear arms. The first ten amendments came into being through the agency of distribution. They came into being not at the federal Constitutional Convention itself, but out of the ratification proceedings, the centrifugal period during which there was dispersed out to the population for its confirmation the proposed constitution, itself only a "proposal," [38] a recommendation, or (as it was called during the Virginia Convention) "that paper on the desk over there." [39]
In the records of the ratification debates, the Constitution is again and again talked about within the framework of explicit arguments about what it means "to consent," "to contract," "to compact," or "to make a social contract." [40] Most important, the [Page 1272] ratification itself is the performative action of consent. The Virginia instruments of ratification, for example, sweep through a two paragraph preamble asserting the knowledge, freedom, and deliberation with which the action of the third paragraph is performed, that third paragraph reading:
We, the said delegates, in the name and behalf of the people of Virginia, do, by these presents, assent to and ratify the Constitution, recommended on the seventeenth day of September, one thousand seven hundred and eighty- seven, by the federal Convention, for the government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following. [41]
The resolution of South Carolina, shorn of all preambles, reads more simply: "Resolved, That this Convention do assent to and ratify the Constitution agreed to on the 17th day of September last, by the Convention of the United States of America, held at Philadelphia." [42] Only relatively brief records of the South Carolina [Page 1273] Assembly exist. [43] Generally speaking, consent-- whether exercised in the spheres of political, marital, or medical contract making--has a tonal range that extends from acquiescence and the privative, on the one hand, to eager affirmation and expansive largesse on the other. The latter, the complete merging of obligation and desire, becomes audible in the reaction to the South Carolina vote. There had been, according to Elliot's sources, a motion to delay the South Carolina vote until Virginia came in with its vote, but the motion was rejected: "The rejection of it was considered as decisive in favor of the constitution. When the result of the vote was announced, an event unexampled in the annals of Carolina took place. Strong and involuntary expressions of applause and joy burst forth from the numerous transported spectators." [44]
This transformation of a speculative recommendation into "binding law" occurs through the instrumentation of ratification; it is only this that gives it the weight and authority of the material world. As Akhil Amar wrote, "The Constitution is our supreme law, superior to ordinary legislation, simply because its source was the supreme lawmaker, superior to ordinary legislatures: 'We the People of the United States."' [45] The most eloquent testimony to the distributive element in the right to bear arms is the fact that it came into being, along with the other nine amendments, during the [Page 1274] actualization process. Such actualization was acquired from sheer proximity to so many persons willing, by their endorsement, to lend the paper some of their own material form. In effect, they endorsed the contract in exchange for an alteration in the contract--the promise of appended amendments. Roy Weatherup wrote:
There might never have been a federal Bill of Rights had it not been for one alarming event that is almost forgotten today. As part of the price of ratification in New York, it was agreed unanimously that a second federal convention should be called by the states, in accordance with Article V of the Constitution, to revise the document. Governor Clinton wrote a circular letter making this proposal to the governors of all the states. [46]
Rather than put the entire Constitution at risk by a reconsideration, Madison and the Federalists agreed to the addition of amendments.
New York was successful because other state assemblies had already voiced strong reservations by attaching proposed "rights" amendments to their articles of ratification. But New York's role was decisive and had been foreseen (even in the midst of the federal convention) by Elbridge Gerry of Massachusetts. Gerry, a tireless opponent of a centralized military, warned in August of 1787 that the proposed Constitution lacked a sufficient "check" against a standing army in time of peace, and that there would be great opposition on this basis. [47] "He suspected," Madison wrote of Gerry in his convention notes, that preparations of force were now making against it. (He seemed to allude to the activity of the governor of New York at this crisis in disciplining the militia of that state.) He thought an army dangerous in time of peace, and could never consent to a power to keep up an indefinite number. [48] [Page 1275]
During the New York convention in the summer months of 1788, Madison wrote letters to Edmund Randolph expressing his anxiety about the outcome, and on July 16, acknowledging that ratification was uncertain, added, "The best informed apprehend some clog that will amount to a condition." [49] That clog or condition became the Bill of Rights. In the end, New York changed the wording from "on condition" that an amendment convention be called to the words "in full confidence" that an amendment convention will be called. [50] They were right.
The fact that the right to bear arms gained constitutional standing through the agency of the ratification debates is critically important because, as will become clear below, the amendment replicates three attributes of the ratification process: first, its function as a distributional mechanism; second, the immediacy and self-consciousness of the contracting action; third, the role played in the work of validation by the phenomenon of "materiality" or (in Madison's idiom) "clogging." The first of the three will be quickly sketched here, then elaborated along with the other two in the analysis of the second amendment that follows.
It may seem only a pleasurable coincidence that a distributional mechanism (the second amendment) should arise out of a distributional process (the ratification debates). But the gravity of this circularity soon becomes apparent. As a group, the first ten amendments are increasingly recognized as sponsoring "collective" rather than narrowly individual rights, not only because they ensure the population's ongoing access to procedural gates of consent such as assembly, jury, and open press, but because they in turn sponsor later revisions in the Constitution (such as the thirteenth, fourteenth, and fifteenth amendments). These revisions in turn sponsor still later revisions: large parts of twentieth century law, various legal commentators have observed, can be seen as elaborations of the Reconstruction amendments. [51] The gradual extension of the [Page 1276] original contract to those large parts of the population (blacks and women) not included in its 1789 provisions occurs through the mediation of the amendments. The distributional work of the first ten amendments is, then, twofold: they multiply the number of consensual gates (assembly, jury, free press, arms) available to the limited population (white male) already included within the 1789 Constitution; they also vastly multiply over time the scale of the population that will eventually have access to those multiplied consensual gates.
Underlying contract theory is a persistent question about the temporal duration of the act of consent: should consent be imagined as a single event that, once having occurred, cannot be retracted in the future? Or is it instead the case that consent is ongoing and can be withdrawn at any time, at once dissolving the contract? This distinction between what can be called "threshold consent" and "perpetual consent" is fundamental to all species of contract: social contract, medical contract, marital contract, etc. [52] [Page 1277]
It provides the language for appreciating what is at stake in the apparently "circular" phenomenon in which the ratification (the moment of distributing the contract to "the population" for its approval) gives rise to the amendments (themselves the agents of the Constitution's eventual distribution to the entire population). In effect, the participants in the ratification debates settled the question of whether the parties to this contract would exercise "threshold consent" or instead "perpetual consent" by using the great, solitary "threshold" moment to revise the Constitution in such a way that the gateways become "perpetual." The Federal Assembly had already built into the Constitution the possibility of perpetual consent in the article V provisions for amendment. But the ratifiers, in effect, made the immediate application of article V a precondition for their own validation of article V and the contract's other four articles. By specifying a series of materialized loci, they gave the practice of perpetual consent a material shape and a locatable form--newspapers, jury box, assembly hall, and (as will become clear) arms.
If the amendments as a group are "distributive" in their general character, [53] the second amendment is so specifically. [54] The [Page 1278] repeated call for the decentering of military power at the ratification conventions was, in its overt phrasing, consciously poised against the centrist habits of the Constitutional Assembly. But in fact the amendment works to amplify, rather than to contradict, the dispersal of military power that had already occurred at the center. What is remarkable is that the two sites of contract-making--the Federal Assembly and the ratification assemblies--each in their separate decisions on the military, chose the largest possible unit of people to oversee questions of war. During the Federal Assembly's deliberations on article I, section 8, the power to declare war-- what Joseph Story would one day call "the highest act of legislation" [55]--was explicitly withheld from the President as well as from either the House or the Senate acting alone; it was given instead to the full Congress, the largest pool of persons among the three federal branches. [56] Again, during the deliberations of the ratification assemblies, the insistent call for a "right to bear arms" amendment envisioned military responsibility dispersed across the entire population. At each site, a decision was made that war must be overseen by a group whose size was the largest possible and, perhaps even more striking, whose size was coterminous with the [Page 1279] size of the deliberative body making the decision. The Constitutional Congress made the full Congress the arbiters of war; the Popular Assemblies made the population the arbiters of war. None disarmed themselves. To have done so would have been to dissolve the capacity even to enter into the act of contract-making.
B. Distributive Inequities Dissolve the Contract
As this section will show, throughout the ratification period, inequities of distribution in the nation's arms are described in the idiom of military defeat. Because armed coercion and social contract are understood as two antagonistic models, what is being perceived in this inequity is not some local species of unfairness, but a dissolution of the basic social contract itself.
The right to bear arms is widely recognized as going hand in hand with the long standing distress over standing armies. The pre-Revolutionary American arguments against the standing army-- as well as the longer tradition of British arguments--had as a single goal their opposition to the concentration of the military power in the hands of a monarch, president, or any other occupant of an executive site. They were thus themselves distributive arguments, urging a decentralization of the military by means of the militia. At least seven of the states [57] had constitutional provisions protecting the militia and prohibiting (or advising against) a standing army. When during the federal convention Madison identified "large standing armies" as "the greatest danger to liberty," [58] he was echoing a long tradition which saw not foreign armies but inequities in one's own military as subverting the social contract because they slide the society back into the blur of pre- contractual coercion. That backward slide is registered in the two recurring constructs of "invasion" and "disarming."
An inequality of arms, a concentration in one location and an absence in another, is described repeatedly in Anglo-American [Page 1280] history as a military defeat or "invasion." For example, a 1769 resolution of the Massachusetts House of Representatives held:
That the establishment of a standing army, in this colony, in a time of peace, without the consent of the General Assembly of the same, is an INVASION of the natural rights of the people, as well as of those which they claim as free born Englishmen, confirmed by magna charta, the bill of rights, as settled at the revolution, and the charter of this province. [59]
Benjamin Franklin one year later wrote to Samuel Cooper of the possibility that the King will raise and quarter his army:
And while we continue so many distinct and separate States, our having the same Head . . . will not justify such an Invasion of the Separate Right of each State to be consulted on the Establishment of whatever Force is proposed to be kept up within its Limits, and to give or refuse its Consent, as shall appear most for the Public Good of that State. [60]
The inequalities that give rise to the conceptual geography of invasion are not themselves always inequalities of physical force or physical arms. One post- revolutionary tract arguing against inheritable military titles--Cassius's 1783 Considerations on the Society or Order of Cincinnati [61]--perceived the unequal distribution of military honor among the revolutionary soldiers as leading to two groups of citizens, the titled and the untitled (and implicitly, the entitled and the unentitled). Can anyone believe, Cassius asked, "that the remaining rights of the people which are yet left untouched, [Page 1281] will not be invaded and violated, by men, who disdain the condition of private citizens . . .?" [62]
The pre-revolutionary and post-revolutionary charge of "invasion" resurfaces continually during the ratification period. Agrippa's 1788 letters in The
Massachusetts Gazette, for example, include among their proposed conditions for accepting the Constitution an amendment ensuring each state's control of its own militia and an amendment prohibiting invasion: "[N]o continental army shall come within the limits of any state, other than garrison to guard the publick stores, without the consent of such states in times of peace." [63] Luther Martin's letters to The Maryland Journal argue that if the central government's call to the militia is unmediated by the authorizing "consent" of the states, the country will enter the condition of "martial law" and freemen will enter the situation of "slaves." [64] The palpable apprehension of "invasiveness"--the trespass over the physical boundaries of the state, over the nation-state, or instead over the physical boundaries of persons--is itself memorialized in the progression of the amendments in the Bill of Rights. After the second amendment's prohibition of an unequal distribution of arms comes the third amendment's prohibition of the nonconsensual entry of soldiers into houses, followed by the fourth amendment's prohibition of "unreasonable searches and seizures" of "persons, houses, papers, and effects." [65]
The insistent appearance of the invasion idiom in both the revolutionary and the ratification periods underscores the fact that the "invading" army may belong to another nation or to one's own. The unequal dispersal of military power--rather than the overt spectacle of incoming soldiers--instigates the vision of contractual collapse. As defeat follows invasion, so the spectre of "disarming" [66] follows that of "invasion." The invocation of this second [Page 1282] idiom displays the same clash of the literal and the metaphorical, the same apprehensive conflation of foreign and domestic agents of contractual subversion. The 1689 Declaration of Rights presented to William and Mary, that later became the British Bill of Rights, contained as its fifth and sixth charges against James II the assertion that he had attempted "to subvert" the "laws and liberties" by "raising and keeping a Standing army . . . in Time of Peace without Consent of Parliament" and " b y causing several good Subjects, being Protestants, to be disarmed at the same Time when Papists were both armed and employed contrary to Law." [67] The British king, as Roy Weatherup stressed, "did not disarm Protestants in any literal sense; the reference is to his desire to abandon the militia in favor of a standing army and his replacement of Protestants by Catholics at important military posts." [68] During the American Constitutional Convention, Elbridge Gerry opposed the standing army and national control of the militia on the grounds that they approximated a "disarm ing " of the state citizenry and a shifting of national structures toward a "system of Despotism." [69]
The charge of disarming recurs constantly during the ratification debates. The enslavement of the population that Luther Martin envisioned in Maryland would come about, he argued, through the standing army's attempts "to disarm" the militia." [70] At the Pennsylvania Ratification Committee, the minority report counselling against ratification attributed its dissent in part to the need for a constitutional provision stipulating "no law shall be passed for [Page 1283] disarming the people." [71] The fact that Pennsylvania muskets were called in for repair during the period of debate led those opposing ratification to suspect military suppression of their dissent. In an address entitled To the People of Pennsylvania, Centinel asked, "What otherwise is the meaning of disarming the militia, for the purpose as it is said of repairing their musquets at such a particular period? Does not the timing of the measure determine the intention?" [72] Aristocrotis, too, charged that a recall of the public arms "upon the pretence of having them cleaned" was a way of "disarm ing " the militia in order to discredit and disempower all objections to ratification. [73]
The verbal reflexes of "invasion" and "disarming" consistently reveal that a nondistribution of military power is perceived not as a secondary or tertiary attribute of a given contractual society, but as something so profoundly incompatible with it that the form of the government itself dissolves: contract disappears, and it is replaced by latent despotism. Conversely, "militia" is understood to mean "a distribution of military power," and this "distribution of military power" is recognized as essential to the preservation of the social contract itself. It is for this reason that nineteenth century legal philosophers like William Rawle identified the militia "as the palladium of the country" [74] and political leaders like Governor Brooks of Massachusetts called it "the palladium of . . . civil rights." [75] Joseph Story, explaining why the right to bear arms is "justly" considered "the palladium of the liberties of a republic," said that the militia provides a free country with a defense "against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers." [76] At the opening of this triad, [Page 1284] physical invasiveness is attributed to the foreign power, but by the end it has migrated to the ground of internal inequity, as standing armies "afford a facile means to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people." [77]
Across several centuries of Anglo-American political and legal thinking, the basic conception is consistent. In the language of "invasion of rights" and "disarming," metaphor and material reality ride close to one another. Sometimes, as when the American colonists spoke of the British standing army, [78] what was pictured was the arrival onto the shore and entry into the country of an army referred to as though it were foreign, even though the speakers were themselves British subjects. The "foreignness," the invasiveness, and the capacity to disarm arise not from the fact that the army comes from another shore but from the fact that the army is independent of the population. The idiom of invasion and disarming occurs equally if the speaker is referring to an internal standing army, as when people on the island of Great Britain speak of the standing army there, [79] or when people in the United States prohibit a standing army attached to its own central government. [80] One is invaded if there is an inequality of arms in the population group to which one belongs. If half the people in the space of a room were armed, and the other half not, the second group would by this language be disarmed, though the first intended the other no harm. [81] [Page 1285]
A free standing missile is the realization of everything that ever was feared in a standing army. It permits the concentration of a military force in a central location. It is attached to executive will rather than to the will of the people. Its structures are permanently in place and depend little on historical situations, leaving no room for improvisations and debate. It is inanimate and depends on the population for nothing. One recalls Madison's two hypothetical governments, the first dependent on its population and therefore permitted to stand, and the second independent and therefore obliged to be eliminated. [82] In the vocabulary of both the pre-revolutionaries and the Federalists, free standing missiles have disarmed and invaded us--not because we are moment by moment subject to some rhetorical subjugation, but because we have lost our power of authorization over the arms. The contractual society has begun to slip into the blur of precontractual coercion.
Like Locke, the founders understood contract and coercion as oppositional. Thus, the articles of ratification in Massachusetts and in New Hampshire preface their assent with a prayer of thanks that they can make a compact by assent rather than by fraud or surprise:
The Convention . . . acknowledging, with grateful hearts, the goodness of the Supreme Ruler of the universe in affording the people of the United States, in the course of his providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution . . . DO . . . assent to and ratify the said Constitution . . . . [83]
Like those ratifying the Constitution, those writing it also understood the opposition between "contract" and "force" to be elemental. Madison stressed that "[e]ach State . . . [is] only to be bound by its own voluntary act," [84] and The Federalist Papers as a whole both open and close with Hamilton's climatic reiteration of the [Page 1286] fundamental distinction. " I t seems to have been reserved to the people of this country," he wrote in the first paragraph of the first number, "to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." [85] The final paragraph of the final number returns to the same ground: "The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a PRODIGY, to the completion of which I look forward with trembling anxiety." [86] Subsequent legal commentaries continued to perceive the Constitution within this basic framing opposition. So, for example, in 1825, William Rawle opened A View of the Constitution by placing it in the framework of contract, in contradistinction to political structures that emerge "under compulsion, or by artifice, or chance." [87] The repeated placement of the opposition in a terminal position--the beginning and the end of The Federalist Papers and the opening of Rawle's commentary--underscores its primacy.
The opposition between contract and coercion does not logically mean that the social contract must be empty of military provisions or war-making powers. On the contrary, it is precisely war-making that must be overseen with explicit constitutional provisions. It must be given a level of rigorous scrutiny and must be subjected to explicit consent procedures, warranted by nothing else within the polis except the basic contract itself. This necessity accounts for the rigor and persistence with which the phrase "without consent" is attached to phrases about the standing army. With almost breathtaking regularity, each of the sentences about "invasion" or "disarming" cited earlier--in the Massachusetts Resolution, in Franklin's letter, in Gerry's protest on the floor of the Assembly, and in Agrippa's letters to the Gazette-- posits the gateway of explicit consent as a threshold that must be passed through. The terms "army" and "consent" are inseparable. Other than the Instruments of Ratification themselves, there is no issue to which the word "consent" is so unrelentingly attached. Only in this way can "force" be brought into and made compatible with the social contract. The precise way in which the practice of contractual activity becomes embedded in military structures in a civil society emerges below. [Page 1287]
II. SEALING THE SOCIAL CONTRACT THROUGH DISTRIBUTIVE UNIFORMITY
Defeat is, as the previous section suggested, the perceived form of nondistribution. But what is the material form of distribution? The only way one can have coercive power within a contractual society without eliminating the context of contractual structures is by distribution. Thus, categories that appear to be ethically neutral, like sheer material uniformity and sheer numerical spread, inevitably lead to the ethically charged language of political equity, representation, notions of citizenship, "civilian power," and self-authorizing models such as voting. As nondistribution is envisioned (even in a pacific context) as military defeat, so, conversely, distribution is perceived as the material realization of contract.
A. Of Materiality and Sentience
In part, the desired uniformity is thought of as geographical spread. During the Virginia ratification debates, Mr. Grayson, worrying about centralization of the military, invoked as a warning the model of Britain, where there were admirable laws about the militia itself but where the militia had been permitted to atrophy in Scotland and Ireland. [88] In part, the uniformity is conceived in terms of a class spread. Thus, in the same Virginia ratification debates, George Mason imagined the militia of a future day in which "the higher classes of people," as he put it, are gradually eliminated from the obligation of duty. [89] In part, the uniformity is also understood as a distribution across age and property. During the ratification period, Richard Henry Lee's pamphlet, Letters of a Federal Farmer, went within a few months through "four editions (and several thousands) of the pamphlet." [90] Asserting like Mason a present equity, Lee proceeded to imagine hypothetical inequities of the future when there would be a reversion from contract to the model of coercion, with the young and landless lording over the old and propertied: [Page 1288]
Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless. [91]
The young and landless, by means of an inequality of arms, would suddenly rule over the older and landed. Universalizing provisions, he acknowledged, must be made and lodged somewhere, "but still we ought not so to lodge them, as evidently to give one order of men in the community, undue advantages over others; or commit the many to the mercy, prudence, and moderation of the few." [92]
Mason's and Lee's statements together make it clear that when there is an inequity of arms, one may be disadvantaged by being included in the militia or may instead be disadvantaged by being excluded. Both arguments agree only that the nonuniform model is coercive. Almost any distinguishing feature--whether an irregularity in guns, titles, military exercise, or service--sets off the contractual alarm. [93] Aristocrotis, for example, saw the constitutional division of the militia into two parts--active and nonactive--as prelude to subjugation on the basis of class and age. [94] Concerning one class made up of the young and landless (here the apprehensions of Aristocrotis and Richard Henry Lee coincide), Aristocrotis wrote: [Page 1289]
[By their] daring of spirit [they] may gain an ascendancy over the minds of the vulgar . . . . The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc. which good policy will prompt the government to disarm. It would be dangerous to trust such a rabble as this with arms in their hands. [95]
Two unexpected features emerge across these various claims for uniformity. The constancy of their appearance underscores their importance. The first is materiality. The reversion to the coercive model is pictured as a divestiture of the people's materiality, their very physical substance. Richard Henry Lee wrote:
It is true, the yeomanry of the country [at the present time] possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended--and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions. [96]
But he went on to imagine that a central power, Congress as it happens, could "by modelling the militia" gradually over "twenty or thirty years . . . by means imperceptible" divest men "of that boasted weight and strength." [97] The same apprehension of material divestiture is pictured where arms themselves are evenly dispersed but the insignia of military authority are not. In his 1783 tract against the Order of Cincinnati, Cassius predicted a race of hereditary patricians with access to centers of civil and military power "and the whole country besides themselves, a mere mob of plebeians without weight or estimation." [98] The nonuniform dispersal of guns present in the displacement of a militia by a standing army disarms and severs parts of the body. Sometimes a specified part of the body is removed, as when John DeWitt, in his essays in the American Herald, described the new government's discomfort with putting "arms in the hands of a nervous people" as the necessity of "catching Samson asleep to trim him of his locks." [99] More frequent are the steady stream of references to a generalized form of bodily materiality: "weight," "burden," "firmness," or "ruggedness." [100] [Page 1291]
Material density is key to the political construct of uniformity. In all these instances, the material nonuniformity of persons (geographical location, class, age, land) must be compensated for and irregularities eliminated by the strict material uniformity of guns, insignia, and degree of participatory service. In fact, in the federal convention, in the ratification conventions, and in most subsequent discussions of the right to bear arms, it is startling how often the discussion takes place across the specified material attributes of the weapons themselves. The members of the constitutional convention, for example, debated whether there could be geographical variations of arms--rifles in one local, muskets in another [101]--and disagreed about the degree of specificity required by words like "arming" and "organizing": " Then Mr. King, b y way of explanation said that by 'organizing,' the committee he meant proportioning the officers and men--by 'arming,' specifying the kind, size and caliber of arms--and by 'disciplining,' prescribing the manual exercise, evolutions, etc." [102]
The same startling attention to materiality surfaces in William H. Sumner's brilliant 1823 analysis of the militia, An Inquiry Into the Importance of the Militia to a Free Commonwealth. [103] For Sumner the civil nature of the military depended on its being distributive in the most concrete sense. Irregularities in material form became for him alarming evidence of the country's growing indifference to the importance of keeping an army within a contractual frame:
This is to be apprehended from the distribution of mutilated compilations, and what are called amended editions of the United States System of Infantry Tactics . . . for the militia, in several of the states, the tendency of which, will be to defeat the great design of [C]ongress for establishing [a] uniform system of discipline, and field exercise for the army and militia, throughout the United States. [104]
The 1939 Supreme Court case United States v. Miller [105] might be criticized for the extraordinary emphasis the Court put on the physical attributes of the weapon. The ruling appeared to be stuck to the physical surfaces of the particular gun in the case: [Page 1292]
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. [106]
But that odd specificity of materialization, however inappropriate to the Court's ruling, belongs to a long tradition of attention to the physical properties of military equipment, as the Court's own citations from earlier provisions showed:
[a citizen must] provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack. [107]
Although the principle of materiality sometimes surfaces in mystifying attention to the tattered covers of an infantry manual or the length of a barrel of a gun, in fact what is being registered is the transformation of military structures into civil structures, the basic miracle of the social contract. The principle of materiality is itself audible in the doctrinal formulation, "the right to bear arms." To bear arms is to authorize the bearing of arms, to bear them in the sense of carrying them; to bear them in the sense of standing up under them; to bear them also in the sense of risking the hazard to which having them obligates us. The word "bear"--with its complicated undertow of physical weight and the physical actions of sustaining, pressing, or (as in giving birth) bringing forth that weight--has throughout its history licensed the conflation of things within the body (to bear a baby, Shakespeare's to bear eyes, Scott's to bear a brain, Byron's to bear a heart) with things on or close to the body (the bearing of clothes and of weapons). [108] The work of material uniformity is to make irrelevant material characteristics of personhood: age, geography, class, and property. [109] Because [Page 1293] evenness permits everything else to be uneven, "collective" or "uniform" rights simultaneously allow high degrees of individuality and hence come to be misidentified as themselves "individual." The insistence that solid infantry books be dispersed evenly across the entire geography (or age or class range) relieves the population from being required to occupy a given local geography (or age or class) in order to become eligible for full political empowerment.
The stress on materiality is deepened and clarified by the second attribute which emerges beneath the surface of the call for uniformity: sentience, the capacity for representative feeling, or, as it was repeatedly called during the ratification debates, fellow-feeling. The overt descriptions of the militia, as well as the underlying theoretical accounts of "representation" and "con-sent" (whose etymology in "con-sentir," "to feel with," makes overt the continuity of feeling across persons), [110] turn on these terms. Not everyone must serve, but delegates from all geographical areas, class, age, and property levels must be present to have "fellow-feeling" and judge the aversiveness or the worth of the actions undertaken. The issue is ethical; it is conceived as a matter of fairness, an attempt to establish what in twentieth century discussion of distributive justice is called a "symmetry of everyone's relations to each other." [111] Thus at the Virginia Assembly, Mr. Mason had formulated the uniformity argument on the militia using these terms. A standing army, a militia chosen from the central government, or a militia drawn unevenly across geography, age, and class, will be nonsentient, without a knowledge of the population's feelings and interests: "The representation being so small and inadequate, they will have no fellow-feeling for the people." [112] The phrase "fellow-feeling" recurred, almost as an incremental refrain, in Patrick Henry's brilliant analysis of contract before the same Virginia Assembly. [113] [Page 1294]
The center of the collective case against the standing army is precisely its being nonsentient, severed from the knowledge of the sentience of the population. "A standing army is still a standing army by whatever name it is called; they are a body of men distinct from the body of the people." [114] The idea of the standing army as cut off from the feelings of the citizenry--separated from any base in sentience--recurs constantly. [115] It eventually gives rise to the most frequently invoked trope associated with the standing army: the image of the nonsentient "engine," a word that passes up and down the Atlantic coast during the ratification period in the letters of Luther Martin, the letters of Centinel, the Essays by a Farmer, and the writings of Brutus. [116] The mute nonsentient missiles of the twentieth century, almost wholly independent of the human population they are empowered to destroy, are a vast magnification of this most dreaded attribute of the standing army.
Though the idea of "sentience," "con-sentir," or "fellow-feeling" opens out into the notion of political representation, it preserves at its most minimal the guarantee of "self-representation"--the certainty that participants will at least have "fellow feelings" for their own embodied personhood. For both the eighteenth and nineteenth century, that capacity for "self-interest" was the greatest safeguard on military power, the final defense of the contract, the "palladium" of all republican liberties. Summer's Inquiry Into the Importance of the Militia to a Free Commonwealth unfolded the principle of self-interest as the center from which the capacity for con-sentir and the [Page 1295]
possibility of civil structures emerge: "The history of all ages proves that large armies are dangerous to civil liberty. Militia, however large, never can be; for it is composed of citizens only, armed for the preservation of their own privileges." [117] Uniformity, then, aspires to preserve the contract through a kind of "sentient materialization," a term whose significance for the contemporary problem of nuclear arms will be unfolded below.
The aspiration towards a uniformity that achieves this sentient materialization entails a rigorous stress on numbers. Simultaneously, it holds within it an idea about political self-authorization. I want to end by elaborating each of the two ideas because together they reinstate the consensual act in the material plane.
B. Numbers Count
The first argument concerns numbers, their materiality, and the way in which that materiality performs a braking function on the rush to go to war. The Framers worked to make the initiation of war difficult and its cessation easy. During the convention, Oliver Ellsworth's judgment that it "should be more easy to get out of war, than into it" [118] was shared by most other delegates. George Mason said, "He was for clogging rather than facilitating war; but for facilitating peace." [119] The notion of clogging or clotting played a critical role throughout the convention, the ratification debates, [120] and later legal commentary. Joseph Story saluted the principle of "clogging" when he wrote: "It should therefore be difficult in a republic to declare war; but not to make peace." [121] William Rawle similarly saluted this principle when he observed: "Congress alone can subject us to the dubious results of formal war, a smaller portion of the government can restore us to peace." [122] [Page 1296]
Those forming the Constitution, whether at the federal assembly, in the ratification conventions, or in the newspaper debates, always aspired to small armies when they spoke in terms of the nation's injuring power. [123] But they always pictured large numbers when speaking in terms of the base of authorization. [124] They aspired towards a situation that is the opposite of the one we have today, in which the injuring capacity has been pushed to [Page 1297] extremely large levels, but the base of authorization has been reduced to the smallest possible number of people.
President Nixon stated during the Watergate crisis, "I can go into my office and pick up the telephone and in 25 minutes 70 million people will be dead." [125] This announcement should probably not count heavily against Nixon or any other individual President. Justice Davis once wrote that this nation "has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution." [126] For this very reason, solutions must be structural and independent of psychological accidents.
President Nixon's statement had the important effect of calling attention within the government to the presidential first-use arrangement. It led to a genre of discussion that centers on the question of how many people a presidential order to launch, or alternatively a submarine captain's order to launch, must pass through before it reaches Polaris or Minuteman sites. George H. Questor conceptualized the issue in a way that ties it back to the "clogging" or "clotting" formulations of the federalists. Questor asked: "[H]ow many intervening layers of possibly resistant humanity does he have to pass through?" [127] Questor, as though reassured, at one point remarked:
The published accounts suggest that the positive decisions of as many as three or four [submarine naval] officers altogether are required, to decide whether a duly authorized signal to launch their missiles had indeed been received, and that the physical act of firing them involves the turning of keys at locations physically remote from each other. [128]
The order must pass through the authorization of four or five before the weapons pass through the bodies of many millions. Repeatedly, in discussions of nuclear arms, fears about authorization by only one are calmed by reassurances that it is actually two, as fears about two are calmed by reassurances that it is actually twenty, [Page 1298] and fears about twenty by reassurances that it is actually twenty-five. But in terms of the structure of the Constitution, talk of two or twenty or twenty-five is simply a species of category error.
It is worth remembering how many "intervening layers of possibly resistant humanity" the Constitution envisioned us as having to pass through before war could be fought. In arriving at these numbers, a general principle was continually enacted: it was always--as noticed earlier--the largest possible base over which the founders had control. Thus, when the constitutional convention determined in article I, section 8 that the full Congress should have the power to declare war, they made the first consensual site not the President (an alternative at once rejected) and not the Senate alone (a possibility introduced for its speed and, importantly, rejected on the basis of its speed). So, too, when the Constitution then went to the states, the second consensual locus was made the entire population.
These decisions were made despite the pressures toward "emergency" and "speed" that have always been urged in association with war. [129] Justice Story wrote a lengthy passage about the logic of including both houses in article I, section 8:
Large bodies necessarily move slowly; and where the co-operation of different bodies is required, the retardation of any measure must be proportionally increased. In the ordinary course of legislation this may be no inconvenience. But in the exercise of such a prerogative as declaring war, despatch, secrecy, and vigor are often indispensable, and always useful towards success. On the other hand, it may be urged in reply, that the power of declaring [Page 1299] war is not only the highest sovereign prerogative, but that it is, in its own nature and effects, so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burdensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory . . . . It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted as to its time, and the ways and means of making it effective. The co-operation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two-thirds of both houses. [130]
One of the great peculiarities of the numbers question is the belief that the President is more than one person. The fact that presidential election [131] involves the whole population is wrongly taken as putting greater numerical weight behind the President's [Page 1300] solitary action than behind congressional action, even though Congress entails a much larger body of persons and is collectively elected by the entire national population. The numerical juxtaposition of the presidential electorate with the electorate of an isolated congressional district is a mental act that would be relevant only if one were choosing whether a President or a solitary member of Congress had more authority to kill seventy million persons. That numerical comparison is instead inappropriately used to invalidate the entire congressional authorization of this most fundamental of contractual events.
Locke, urging that military powers be held within the social contract, warned that anyone is "in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men." [132] A population that believes it is more safe to be subject to a solitary executive empowered to kill millions than to confront conventional troops has rejected the ground of its own authority within the social contract.
What would be the numbers--how many intervening layers of possibly resistant humanity--would make nuclear technology consonant with the Constitution? It would begin, but only begin, with the 535 of Congress. The term "people" in early constitutional writings is used, according to legal opinion in one court case, "to express the entire numerical aggregate of the community, whether state or national, in contradistinction to the government or legislature." [133] Today that would be approximately 250 million. If one takes instead the 14% who participated in World War I, the number would be thirty-five million. If one takes the 3% estimated to have fought in 17th- and 18th-century wars, today it would be over seven million. [134] If one takes a two-thirds figure at one point introduced as the number needed from the states to authorize the raising of an army (a proposal Madison thought went too far) the number today would be over 166 million. Numbers are dangerous, but the widely straddling figures from 3% to 66%--from seven million to 166 million persons--are invoked here simply to indicate that they are not in the neighborhood of the one or two or twenty persons that enter into nuclear discussions and that have been for the last few [Page 1301] decades presented to this population in a deeply insulting and gravely unconstitutional mimesis of collective decision-making. Because democratic weapons have always allowed some rough equivalence between the ratio of those injured and those authorizing the injury, [135] perhaps the number required for launch authorization ought to be set by those figures--Nixon's seventy million, for example.
C. Political Self-Authorization: Civil Rights and Rights of Arms
Another great peculiarity in the language of nuclear argument is the concern that only the President should control the firing of nuclear weapons and not a military officer, because the Constitution tried to guarantee "civilian control." In fact, discussions of the militia and of the right to bear arms did stress the category of civilian, but "civilian" expressed distance from, not proximity to, executive control. Adam Smith wrote: "In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force." [136] Nothing in the early writings lends support to the notion that the insistence on civilian, rather than military, control could ever have been addressed by imagining a single civilian in control. As New Jersey Senator Case argued in the 1976 congressional hearings on the United States's nuclear policy of presidential first-use:
It was pointed out by Abraham Lincoln in a letter to his great friend, William Herndon, that it was this power of the kings to involve their countries in war that our Constitution understood to be the most oppressive of all kingly oppressions. The Founding Fathers resolved to frame the Constitution so that no man could keep that power for himself. [137]
Executive control of the army was, from the infancy of the republic onward, consistently seen as the subversion rather than the fulfillment of the contractual requirement for civilian authority. [Page 1302]
Among the "[f]acts... submitted to a candid world" in the Declaration of Independence were two yoked clauses: "He has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power." [138] The yoking of these two--the prohibition of an executive armed force and the assertion of the supremacy of civil over military institutions--recurs in many of the state bills of rights: Virginia (1776), Pennsylvania (1776), Maryland (1776), Vermont (1777), Massachusetts (1780), and New Hampshire (1783). [139] The phrasing of the Massachusetts Declaration of Rights--"and the military power shall always be held in exact subordination to the civil authority and be governed by it" [140]--clarifies the way the issue was pictured. Whenever early tracts on the military introduce an "aesthetic" idiom, whenever they begin to speak of the "beauty" of the militia, [141] what has instigated the [Page 1303] language of beauty is not the luxuriance of the uniforms or the parading display of military might, but the reverse. What is beautiful is the miracle of watching the principle of force brought into and held within the contractual frame. It is this that the parade of the militia displays. The bright uniforms signal uniformity: the decentering, diffusion, distribution, and hence fundamental alteration of the principle of force now relocated from its original position outside to its new position inside the "national pact." [142] In his extraordinary treatise on the subject, William Sumner invokes John Adams as the "civil" father and describes the militia as a "civil" institution that is the palladium of "civil" rights because of its distributive character. [143] The loss of the distributive is the loss of civil beauty, as is audible in Cassius's lament: "They have laid in [Page 1304] ruins that fine, plain, level state of civil equality, over which the sight of the beholder passed with pleasure." [144]
The idiom of "fairness" is, of course, drawn more often from the sphere of justice than from the sphere of aesthetics. The profound inappropriateness of ever applying the phrase "civilian control" to a President's solitary control of nuclear weapons is evident in the insistently decentered meaning of "civilian," an emphasis visible in the conflation of the right to bear arms with the right to vote, a final, and critically important, distributive attribute of the amendment.
The very small number of Supreme Court cases on the second amendment have affirmed its connection to citizenship in the fourteenth amendment, [145] to voting, [146] and to the right of assembly. [147] More serious evidence of the interweaving of voting and arms occurs in the history of the extension of the franchise itself. Both the House and Senate judiciary hearings on the twenty-sixth amendment repeatedly cite the participation of those fighting in Vietnam and of those exercising power to consent by refusing to be drafted as having earned for that generation and all that followed the right to vote at a younger age. [148] In fact, in the Senate Judiciary [Page 1305] Committee report, the original age of twenty-one is itself located in military service:
The 21 year age of maturity is derived only from historical accident. In the eleventh century 21 was the age at which most males were physically capable of carrying armor. But the physical ability to carry armor in the eleventh century clearly has no relation to the intellectual and emotional qualifications to vote in twentieth century America. [149]
The report actually proceeded to argue that the new generation can physically carry its armor at eighteen, again signalling the curious persistence with which the issue of arms is anchored in the notion of material weight. [150] [Page 1306]
So, too, and far more profoundly, the fifteenth amendment, which extended the vote to blacks during the Reconstruction period, was inseparable from the military record: 180,000 blacks had fought in the union army, and this fact was used in arguments supporting the new amendment in Republican newspapers like the Chicago Tribune and New York Tribune, [151] in the 1868 presidential campaign, [152] and on the floor of Congress. [153] Lincoln's "Emancipation Proclamation" had itself been a brilliant merging of two separate verbal acts--a proclamation of emancipation and a call to arms:
I do order and declare, that all persons held as slaves . . . are and hereafter shall be free . . . and I further declare and make known, that such persons of suitable condition will be received into the armed service of the United States, to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service. [154] [Page 1307]
The fifteenth amendment reenacted in reverse the merged logic of self- authorization: as liberty in 1863 made inevitable the eligibility to bear arms, so eligibility to bear arms in 1869 made inevitable the liberty to vote. [155]
The association of the right to bear arms and the right to vote has sometimes worked to contract, rather than continually to extend, the franchise for blacks [156] and for women. Section two of the fourteenth amendment, for example, bypassed the possibility of women's suffrage by expressing its protection of the voting population in an idiom invented to express the requirements for the militia: "male inhabitants of such State, being twenty-one years of age, and citizens of the United States." [157] But women's suffrage was eventually achieved, both in the United States and in other countries, in part by linking the capacity to vote with the capacity to serve in war. [158] Those who today urge the inclusion of women in [Page 1308] military service (whether a voluntary or a drafted army) argue that the burden of defending the country must be distributed across genders so that the civil rights attached to those military obligations also will be fairly distributed across genders. [159] The logic of that coupling is clear: from the earliest moments of the republic to the most recent, the concept of the civil franchise has been inseparable from the record of military participation. The historical record also makes clear the implications of the present nuclear situation: a form of weaponry that eliminates the population of men and women from the sphere of military authorization eventually divests them of their civil authority as well.
In both the negative, and more often positive, instances, the structural equivalences between voting and bearing arms underscore the shared access they provide to the governing of the country, in peace and in war. Elections, reapportionment cases, and constitutional [Page 1309] care about numerical translations from the population base to representation all exemplify what the Supreme Court in Baker v. Carr called the "distribution of political strength for legislative purposes." [160] So, too, the right to bear arms holds within it the assertion of a just distribution of military power for war- making purposes.
III. THE REQUIREMENT FOR DOUBLE AUTHORIZATION IN BOTH WAR-MAKING AND
CONSTITUTION-MAKING
Throughout this argument, war-making and law-making have been steadily implicated in one another, both as those acts are performed by the population and by Congress. The distribution of arms, I have argued, mimics the problems of reapportionment. The bearing of arms is interwoven with the history of voting. The draft, said Alexander Bickel, entails a series of informal referenda. [161] Jacob Javits, as he ushered the War Powers Resolution through the Senate, described "the exclusive authority of Congress to 'declare war"' not as one of Congress's powers but as that power "which the framers of the Constitution regarded as the keystone of the whole Article of Congressional power." [162] Justice Story identified the moment of shifting the nation from a state of peace to a state of war as "the highest act of legislation." [163] Rather than allowing the coupling of law-making and war-making to remain a loose analogy, I want to end by stressing that the equation is quite literal. [164] [Page 1310]
Congressional legislation obviously lacks the weight of constitutional law. The greater authority of the latter derives not from its age, the Constitution will always be under continuous revision, but from the fact that it has two consensual locations. Like statutory law, it originates in verbal actions--declarations, proposals, resolutions--confirmed by the full bicameral congressional assembly. But unlike statutory law, it then migrates out to the population where it must be ratified. The very congressional vote, that within the statutory framework transforms a verbal proposal into a "law," within the constitutional framework, merely transforms a proposal into a more formal proposal. It retains its character as a verbal construct. A two-thirds vote in the House and a two-thirds vote in the Senate--the size of a vote ordinarily required to pass a law, even over a presidential veto, makes it a proposed amendment that then goes before the state assemblies for ratification. [165] The requirement of authorization both from the Congress and from the people tests the nature of representation both in terms of politics and language. The population votes for representatives who vote for a proposed law, which is then sent back to the population for their approval. The process constitutes a literal referendum: an act of referring back and a return to the original ground of political empowerment and linguistic delegation.
The Constitution reserves this requirement for a double location of authorization almost exclusively for constitution-making. A jealous guardian of its own exalted status, the Constitution places encumbrances on its own genesis that ensure its separation from all other legislative products. The single other phenomenon to which the Constitution accords this double authorizing ground, and hence [Page 1311] the single other phenomenon which acquires a gravity equal to its own, is that of war-making. The two doctrinal sites on war-- firstly, article I, section 8 and secondly, the second amendment--literally reenact this double location of certification. War originates in article I, section 8 as a proposition, a verbal performative, a "declaration" in Congress. The proposal must then be substantiated by the call to arms, in which the proposal either is ratified or refused, depending on what portion of the population approves of the country's military participation. This is the second amendment. At the original constitutional convention, the last minute shift in the phrasing of article I, section 8--replacing "to make war" with "to declare war" [166]--registered the fact that though far less speculative a sentence than the moment before the congressional vote, the "declaration" has not yet left the realm of verbal performance. The declaration of war is extraordinary because, in front of the eyes of the world, the representative assembly puts at risk the very population it exists to represent. It puts at risk the ground of its own authorization. The assumption or rejection of the risk by the population--the referenda, the ratification--is therefore crucial. As only the population can "make" the constitutional changes that Congress "proposes," so only the population can "make" the war that Congress declares.
The fact that article I, section 8 was written by the Federal Assembly, and that the second amendment emerged out of the ratification debates, reconfirms the double consensual location. The argument is often made that the emergency context of international security in a nuclear age necessarily entails some abbreviation or relaxation of the consent procedures followed during peacetime. But together article I, section 8 and the second amendment make it clear that the Constitution guarantees just the reverse: consent processes will be more rigorous, not less rigorous, in wartime. It guarantees that the act of consenting will be more express, not less express, for it requires a literal "declaration." It guarantees that the distributive mechanisms will be heightened and amplified through the full vote of both houses and the popular referenda, not relaxed and contracted down to a central authority. Accidental convergences of language are not actually accidental. The language of consent became explicit during ratification (we the people of Virginia, of South Carolina, of New York do assent to and ratify . . .), just as the [Page 1312] word "consent" became explicit in, indeed almost inseparable from, the colonial, pre-revolutionary, and post-revolutionary dialogue on the standing army. The coincidence of its iteration accurately reflects the rigor, expressness, and distributional breadth in both constitution-making and constitutionally sanctioned war-making.
In both constitution-making and war-making, this heightened process of consent takes a visible, material form. The materiality is signalled in the fleeting iteration of the awkward but strangely positive little word "clog." George Mason described the participation of both houses and the slowing down of war that results as "clogging," [167] and Madison, complaining of the delay in the New York state ratification convention that would lead to the Bill of Rights, described it as a "clog" that would lead to some "condition." [168] Both the making of constitutions and the making of war must be clotted with matter--clogged with "intervening layers of possibly resistant humanity" [169]--to give them a gravity and weight consonant with the gravity of the risks brought about. Precisely because human sentience is at stake in the outcome of constitutional revisions and wars, human sentience must also be acutely and elaborately present when both are authorized.
An obstructionist materiality or (in its positive expression) a substantiating materiality resides at the center of both constitution-making and constitutionally sanctioned war-making. This materiality lies beneath the insistent bodily idiom that occurs in both spheres. In the sphere of war- making, the idiom surfaces (as has been visible throughout this essay) in an unexpected array of locations: the stress on "firmness" in Gandhi's conception of nonviolent resistance, [170] the idiom of "ruggedness" and "boasted weight and strength" in the advocacy of a distributed American militia, [171] the odd invocation of the physical properties of a shotgun in Miller v. United States, [172] and the collaborative "road-clogging" performed by combatants and hungry horses in World War I France. [173] The same physical idiom of weight, firmness, and embodiedness has from the earliest moments of the nation been used to describe acts of legislative ratification. Among the [Page 1313] "facts to be submitted to a candid world" by the Declaration of Independence was the charge that the king "has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people." [174] So echoic of military resistance is this description of the population's legislative resistance that it might with ease be mistaken for its kindred form of obstruction.
During the later period of actual constitutional ratification, the participants repeatedly described the process as one of materialization. While Madison's attribution of the world "clog" to the New York ratification was uttered derisively, [175] those resisting passage of an unamended Constitution announced their clogging materiality with pride. The most articulate exegeses came from Patrick Henry:
I declare, that if twelve states and a half had adopted [the unamended Constitution], I would, with manly firmness, and in spite of an erring world, reject it. [176]
. . . .
Gentlemen strongly urge, its adoption will be a mighty benefit to us; but, sir, I am made of so incredulous materials, that assertions and declarations do not satisfy me. [177]
Henry's language was echoed by similar declarations in the other states' debates, where ratification was repeatedly envisaged either as a bodily internalization of the document [178] or instead as a fusion of body and document. [179] The proposed document was perceived as an insubstantial piece of paper: " T he paper on the table," said Madison; [180] " T hat on your table," said Patrick Henry; [181] " T he paper before you," said Governor Randolph; [182] " T hat paper on your table," said Mr. Nicholas. [183] These phrases suggest [Page 1314] how fragile, how provisional the document was prior to its confirmation, seemingly deriving its sturdiness from the table alone. For the participants during the debates, the document did not yet have any substantial weight, and it could only acquire weight by annexing the participants' own materiality: "You have not solid reality--the hearts and hands of the men who are to be governed." [184] "Will gentlemen, then, lay their hands on their hearts, and say that they can adopt it in this shape?" [185] The Constitution would only become law, they repeatedly said, if they put a hand to it, if they put their hearts to it, if they stood behind it. [186] The ratification assemblies provided the sentient base for substantiation and, somewhat remarkably, made vocal and explicit the nature of the materialization process.
The very requirement of materiality impedes the alteration of the Constitution and protects it against unexamined legal flights of fancy. Over five thousand amendments have in two centuries been proposed. Of these five thousand, thirty-three have left the Congress with a two-thirds vote in both House and Senate; of these thirty-three, twenty-six have then received the ratifying vote of the states. [187] Thus 4,974 have been prevented from acquiring constitutional reality by the encumbering process, the same encumbering [Page 1315] process that has given the surviving twenty-six their weight and solidity. [188] We lack the means to calculate how many thousands of wars have passed through the minds of solitary individuals, how many fewer of these wars would have seemed plausible once reviewed by a council, and how many still fewer of these would have received the population's enactment. Perhaps, like the ratio of amendments, we collectively fight twenty- six of every 5000 wars that are individually imagined. Though numerically incalculable, the clogging process at least can be glimpsed in the story of the wild La Courtine horses blocking the road in World War I France, [189] as well as the many other occasions in which the encumbering actions of strike, demonstration, or rebellion, either at the threshold or the center, have impeded the waging of war, bringing it (at least for a time) to a stop. [190]
This requirement for materiality--the assent of person after person after person iterated thousands of times--makes it hard to make constitutions and hard to declare wars with speed and efficiency. But it is also precisely this encumbering materiality that gives both constitution-making and constitutionally sanctioned war-making their capacity to secure our liberty. William Sumner articulated the relation between armed resistance and legislative resistance. Describing the way the distribution of military authority to a wide population endows the country with a thick materiality or a highly textured surface, he wrote, "[t]he general unevenness of our country; the numerous obstructions to the progress of an enemy, which its woods, rocks, ravines, rivers, meadows, mountains, mills, stone walls, and villages present, are peculiarly favourable to militia operations." [191] As Sumner proceeded to elaborate at length, this [Page 1316] impedes an enemy's entry into the country far more effectively than does a centralized army, which may disappear after a single battle. In discussing the constitutional guarantees provided by the doctrinal formulation of the right to bear arms, Sumner returned to the word "obstruction" as the mysterious center of political liberty: "Obsta principiis." [192] The Constitution, through a provision such as the second amendment, works by obstruction; it anticipates and eliminates the possibility of executive tyranny. It thereby eliminates the need for the population even to have to speculate about so ungracious a possibility. Both our Constitution and our constitutionally mandated requirements for a distributed defense system thus protect our political liberty through the benign material principles of obstruction and substantiation.
CONCLUSION
I have been arguing that nuclear weapons themselves constitute a large tear in the social contract. When one contemplates the physical attributes of nuclear war--the scale of the hurt involved in images we all know--it may seem beside the point to add that there is a tear in the social contract. But those physical attributes--the irrecoverable injury to people, to all they have made, and to the earth--that is the tear in the contract. That is what it looks like when a social contract is torn up. For that reason, it seems important to bring our own contract to bear on the problem. The right to bear arms has been said, not uncontroversially, to contain within it the right of revolution. [193] Either we ourselves can bear arms and change the situation by revolution, or as seems more plausible and desirable, we can bring into view the pre- revolutionary situation and call for judicial recognition of the distributive intent of the right to bear arms.
* Elaine Scarry is Professor of English and American Literature at Harvard University. I am grateful to Yale Law School, to the Institute for Advanced Study in Berlin, and to the University of California, Berkeley, for the opportunities to present earlier versions of the essay. This Article has profited greatly from ongoing conversations with Akhil Amar. My thanks also to Bruce Ackerman, Peter Brooks, Tom Ehrlich, Liana Farber, Michael Gilmore, Stephen Greenblatt, Liz Hasse, Don Kates, Todd Kelly, Stephen Knapp, Sanford Levinson, D.A. Miller, Joshua Newberg, Judith Resnik, Dave Richards, Miguel Sancho, John Searle, Henry Shue, Ann Snitow, Jeremy Waldron, and Richard Wollheim.
[1] I. KANT, On the Proverb That May be True in Theory, But is of No Practical Use, in PERPETUAL PEACE AND OTHER ESSAYS ON POLITICS, HISTORY AND MORALS 61, 88 (T. Humphrey trans. 1983).
[2] Id.
[3] T. HOBBES, BEHEMOTH OR THE LONG PARLIAMENT 59 (F. Tonnies rev. ed. 1889) (1682).
[4] See J. LOCKE, SECOND TREATISE OF GOVERNMENT 8, 46, 47, 66-68, 101-24 (C. B. Macpherson ed. 1980) (6th ed. 1764); see also Dunn, Consent in the Political Theory of John Locke, in LIFE, LIBERTY, AND PROPERTY: ESSAYS ON LOCKE'S POLITICAL IDEA 154 (G. Schochet ed. 1971) (noting that behavior which is caused by an external force, such as force of arms, does not imply free choice). Hobbes's chapter in the Leviathan on the generation of the common- wealth begins: "The finall Cause, End, or Designe of men . . . in the introduction of that restraint upon themselves, (in which wee see them live in Common-wealths,) is the foresight of their own preservation . . .; that is to say, of getting themselves out from that miserable condition of Warre . . . ." T. HOBBES, LEVIATHAN 223 (C.B. Macpherson ed. 1968) (1651). The self- consciousness with which the American founders, as well as earlier contractual societies, positioned contract against force, is elaborated later in the Article. See infra text accompanying notes 57-58, 118-135, & 164.
[5] J. STORY, 2 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES: WITH A PRELIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES BEFORE THE ADOPTION OF THE CONSTITUTION 87 (4th ed. 1873).
[6] For statements by Oliver Ellsworth and George Mason, see infra text accompanying notes 118-119.
[7] For statements by Joseph Story and William Rawle, see supra text accompanying note 5 and see infra text accompanying notes 121-122.
[8] The most comprehensive attempt to track the paper record through which United States presidents have assumed control over nuclear weapons is Frank Graham Klotz's unpublished Oxford University D. Phil. dissertation. See F.G. Klotz, The U.S. President and the Control of Strategic Nuclear Weapons (1980) (unpublished manuscript). No published account of the sequence of presidential directives formalizing this strategic policy is available to the population. No president has addressed the population (in his State of the Union speech or on any other occasion) about this national policy.
Perhaps in part as a result, a 1984 Public Agenda Foundation poll found that 81% of the United States population were unaware of the nation's first-use policy; they believed that the country had nuclear weapons for defensive purposes only. See Yankelovich & Doble, The Public Mood: Nuclear Weapons and the U.S.S.R., 63 FOREIGN AFFAIRS 45 (1984) (citing PUBLIC AGENDA FOUNDATION & CENTER FOR FOREIGN POLICY DEVELOPMENT AT BROWN UNIVERSITY (co- authors), VOTER OPTIONS ON NUCLEAR ARMS POLICY: A BRIEFING BOOK FOR THE 1984 ELECTIONS 34 (1984)). The poll followed an eight-year period during which the issue had been openly, but only occasionally, addressed by political and religious leaders. See, e.g., First Use of Nuclear Weapons: Preserving Responsible Control: Hearings before the Subcommittee on International Security and Scientific Affairs of the Committee on International Relations of the House of Representatives, 94th Cong., 2d Sess. (1976) [hereinafter Hearings: First Use of Nuclear Weapons]; Bundy, Kennan, McNamara & Smith, Nuclear Weapons and the Atlantic Alliance, reprinted in NO-FIRST-USE 4 (F. Blackaby, J. Goldblat, & S. Lodgaard eds. 1984) (originally an influential 1982 Foreign Affairs article); NATIONAL CONFERENCE OF CATHOLIC BISHOPS, THE CHALLENGE OF PEACE: GOD'S PROMISE AND OUR RESPONSE vii (1983) (urging NATO to adopt a no first-use policy).
Political, legal, and religious concern tends not to be widely reported in the press: when 1988 presidential candidate Jesse Jackson pledged no first-use, the L.A. Times devoted a headline to the announcement. See Jackson Sees First Use as Irrational, L.A. Times, May 27, 1988, pt. I, at 1, col. 1. Their act was unusual, though, and the issue did not become part of the election contest. On January 3, 1989, Representative Weiss of New York introduced a joint resolution on first-use, which was referred to the Committee on Foreign Affairs and the Committee on Armed Services (March 1, 1989), but did not receive public attention. See H.R.J. Res. 46, 101st Cong., 1st Sess. (1989). Nor was press attention given to the 1987 lawsuit against presidential first-use brought by California Representative Dellums. See infra note 33. The American public's attention to the subject is often prompted by international, rather than national, sources, such as the Soviet Union's 1990 reiteration in Vienna of its own 1982 pledge against first-use; Andrei Sakharov's editorial shortly before his death urging the United States to abdicate first-use, see Sakharov, Sakharov on Gorbachev & Bush, Wash. Post, Dec. 3, 1989, at C1, col. 1; Presidents' Answers Don't Always Answer, Int'l Herald Tribune, Dec. 4, 1989, at 6; and the November 1990 Stockholm Declaration made by the Swedish Initiative for the Prevention of Accidental Nuclear War (a coalition of all six political parties of the Swedish Parliament and nine professional organizations against nuclear arms) which calls for the nonproliferation of nuclear weapons to countries where they do not yet exist and the international delegitimization of nuclear weapons in countries where they already exist. The Swedish Initiative stipulated that first-use should be eliminated, even before international delegitimization of all nuclear weapons can be fully achieved:
Delegitimize the use of nuclear weapons . . . . [O]ne realistic step towards the complete elimination of all nuclear weapons, should be to negotiate an international convention banning the use, or threat of use, of nuclear weapons. Consequently, all nuclear weapons countries should declare a policy of no-first-use and adapt their military structures to this policy.
ACTION PROGRAM FOR THE PREVENTION OF ACCIDENTAL NUCLEAR WAR 19 (S. Hellman ed. 1990); see id. at 9, 14, 19.
[9] With the invention of nuclear arms and the progressively more formalized policy of presidential first-use, United States presidents have ceased to view the article I requirement for a congressional declaration as binding even when entering conventional war; thus, both the Korean War and the Vietnam War were undeclared. Yet precisely because these wars were fought with conventional weapons, the second species of consent still protected the country by permitting the voice of the population to be heard.
[10] A. BICKEL, THE MORALITY OF CONSENT 102-03 (1975).
[11] Id. at 102.
[12] Id.
[13] See J. MCCAGUE, THE SECOND REBELLION: THE STORY OF THE NEW YORK CITY DRAFT RIOTS OF 1863, at 143 (1968) (describing the unrest across the Northern states). Many of the incidents, as well as the names of participants and those killed are reconstructed in A. COOK, THE ARMIES OF THE STREETS: THE NEW YORK CITY DRAFT RIOTS OF 1863 (1974). Resistance may also, as Joseph Story's editor observed, be initiated by national or state authorities:
When the late civil war broke out, and the President issued his call for 75,000 militia, apportioned among the several States which had not declared their secession, the governors of several of the border States responded with either a peremptory or a qualified refusal. The governors of Virginia, North Carolina, Kentucky, Tennessee, Missouri, and Arkansas refused in the most positive, and some of them in insulting terms . . . [and they contested its constitutionality].
J. STORY, supra note 5, at 117 n.5.
[14] See T. DWIGHT, HISTORY OF THE HARTFORD CONVENTION 358-62 (1833), cited in J. STORY, supra note 5, at 99 n.1 (asserting that the Constitution gives Congress no power to draft).
[15] The Vietnam War has been introduced here as the model of threshold consent because of the visible refusal by many of draft age to enter. But the exercise of consent and dissent was, of course, continuing to be enacted at the center by those who had initially agreed to go. In a "top-secret" cable to President Kennedy on September 19, 1963, Ambassador Henry Cabot Lodge summarized General Minh's litany of the factors weakening the Saigon-American side. This list began with the greater allegiance of the population and university students to the Viet Cong, proceeded to the problem of graft in the Vietnamese distribution of U.S. aid, and climaxed with the observation that "the 'Heart of the Army is not in the war."' N. SHEEHAN, A BRIGHT SHINING LIE: JOHN PAUL VANN AND AMERICA IN VIETNAM 364 (1988) (quoting Cable from Henry Cabot Lodge to John F. Kennedy (Sept. 19, 1963)). Sheehan's biography chronicles the way John Paul Vann's acute criticisms of the U.S. actions in Vietnam influenced journalists who in turn communicated this picture to Americans at home. See id. at 316, 342. The book simultaneously provides a portrait of the influence of civilians throughout the countryside. See id. at 351, 355, 357, 371. In effect, the United States armed a large portion of the population, many of whom chose to use their arms on behalf of the Viet Cong. Between November of 1962 and the early months of 1964, according to Sheehan: "with the exception of the heavy weapons specialists, the U.S. government armed virtually every fighter--right down to the local hamlet guerrillas--on the Communist side." Id. at 374; see also id. at 313-14, 503-08 (describing the large quantities of arms in Communist possession).
So, too, the other U.S. wars that display the phenomenon of threshold consent also illustrate the ongoing exercise of the power to consent or dissent. The relative speed with which the United States extricated itself from the War of 1812 is conventionally attributed to the war's unpopularity with the country's population. The part played in the Civil War by the "collapse" of the Confederate army has also been documented: "Nearly 250,000 eligible whites are estimated to have deserted or to have avoided conscription altogether." J. SCOTT, WEAPONS OF THE WEAK: EVERYDAY FORMS OF PEASANT RESISTANCE 30 (1985).
[16] R. WATT, DARE CALL IT TREASON 275 (1963). The French source on which Watt bases his narration of the mutiny--P. POITEVIN, LA MUTINERIE DE LA COURTINE: LES REGIMENTS RUSSES REVOLTES EN 1917 AU CENTRE DE LA FRANCE 149-51 (1938)-- goes on to describe the events of September 17-19, 1917 in the same images of road clogging, though soon it is between 6,000 and 7,500 men rather than horses:
This release of horses was only the beginning and at two o'clock the rebels having gathered in the barracks of Laval emerged with their belongings, without arms, and formed groups of four waving little white flags. The movement of surrender had begun. The vast majority of the troupe, despite the dictates of the ultimatum, headed for La Courtine, by a small road that led to the church, next to which was the command post of the French general staff. . . . The total number of submissions reached almost 7500 men. Some came on foot, others in vans, in wagons, carts, on horseback, etc., all without arms. . . . Despite the congestion produced at the same place by the traffic of thousands of soldiers . . . .
Id. at 149-51 (translated from the French). (I am grateful to D.A. Miller for providing an English translation of this passage, as well as of passages cited in notes 18, 26, 34, & 35.)
[17] R. WATT, supra note 16, at 275.
[18] R. POINCARE, 9 AU SERVICE DE LA FRANCE: NEUF ANNEES DE SOUVENIRS 153 (1932) (from the memoirs of Raymond Poincare; the original French reads: "Des hommes ont refuse d'aller aux tranchees. L'ordre est menace partout. La fievre s'etend."'). Continuing the metaphor of bodily disablement, Poincare asked, "Will we need to wait for a new Marne victory to be cured?" Id. (translated from the French).
[19] B.H. LIDDELL HART, HISTORY OF THE FIRST WORLD WAR 302 (1972).
[20] Id.
[21] See D. DAHNHARDT, REVOLUTION IN KIEL 48, 50-54 (1978).
[22] B.H. LIDDELL HART, supra note 19, at 379.
[23] See A. ROTHSTEIN, THE SOLDIERS' STRIKES OF 1919, at 37-85 (1980).
[24] See id. at 39.
[25] The phenomenon of "clogging" in both war-making and law-making is elaborated later in the Article. See infra notes 118-35, 161-93 and accompanying text.
[26] The power of dissenting soldiers at the interior of war is equally visible in wars of the present decade. The defeat of Iran in a series of battles in the Iran-Iraq War, for example, has recently been attributed to the disenchantment of Iranian soldiers:
According to n.umerous observers, it is this demoralization of the pasdarans and the bassidjis (volunteers) that is responsible for the defeats, otherwise inexplicable, at Fao, Chalamcheh and Majnoun, more than the Iraqis' now systematic use of chemical warfare. The latter in any case constituted an additional subject of recrimination against those in power, who 'had taken no precautions to protect us from these deadly weapons'. . . . Little by little, the fronts came undone, despite the appeals of the authorities, which now fell on deaf ears. A campaign for the enlisting of volunteers, launched with great media support after the loss of Chalamcheh, managed, it is said, only to recruit . . . 250 volunteers in Teheran.
Gueyras, La colere des pasdarans, Le Monde, Aug. 21-22, 1988, at 1, col. 1, & 5, col. 1 (translated from the French).
Soldiers' strikes, acts of desertion, and disobedience also played a stunning role in the 1989-90 revolutions in Europe. The East Germany Army, once renown for its discipline and training, was drastically reduced by desertions which took place between November and March. Its size fell by almost half, from 173,000 to 90,000; remaining soldiers sometimes expressed reluctance to participate in ordinary activities such as the military exercises carried out by Soviet troops. See E. Germans Deserting, Newsday, Mar. 1, 1990, at 12; Int'l Herald Tribune, Mar. 1, 1990, at 1, col. 2; Trumbull, News Currents, Christian Sci. Monitor, Mar. 1, 1990, at 2, col. 1. In late December, Romanian soldiers took the side of the population it had been ordered to suppress and in doing so brought about the fall of Ceausescu. At the end of March, after the Soviet Army in Lithuania had received "permission to use violence" against the population, almost two thousand Lithuanian soldiers deserted, formally registering their names at the parliament building in Vilnius. See Lieven & Dejevsky, Vilnius Anger Over Seizure of Deserters, The Times [London], Mar. 28, 1990, at 1, col. 1.
[27] Regarding the stress on morale by military leaders, see E. SCARRY, THE BODY IN PAIN: THE MAKING AND UNMAKING OF THE WORLD 104-07, 153-57, 345-46 (1985).
[28] M. GILBERT, 4 WINSTON S. CHURCHILL 235 (1975), cited in A. ROTHSTEIN, supra note 23, at 95. For a discussion of the British soldiers' awareness of the plan, see id. at 100.
[29] B. SERRIGNY, TRENTE ANS AVEC PETAIN 146 (1959), cited in R. WATT, supra note 16, at 215.
[30] D. LLOYD GEORGE, 4 WAR MEMOIRS 335 (1934), cited in R. WATT, supra note 16, at 218.
[31] The framers of the Constitution might well have assumed that this second form of consent was protected by the material attributes of the guns themselves and therefore needed no doctrinal protection. Both Hamilton and Madison, in fact, argued that the unqualified concentration of military power in the hands of the Executive (of the kind we now have in the provisions for presidential first-use) was impossible because the need to amass that level of power also required the amassing of persons who certainly would not permit it. Hamilton, in The Federalist No. 26, argued: "An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations . . . ." THE FEDERALIST NO. 26, at 172 (A. Hamilton) (C. Rossiter ed. 1961). Then follows a cascade of rhetorical questions:
Is it probable that such a [conspiracy between the legislature and Executive to permit such a menace] would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body . . .? Is it presumable . . .? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough . . .?
Id. Were the Executive to concentrate this kind of power, wrote Hamilton, the people would retract their consent and turn their backs on the state created; the union would be dissolved, and a federalism would emerge so diverse it would give way to anarchy. Then, at the end, he returns once more to the impossibility of it: "But the question again recurs, upon what pretense could [the President] be put in possession of a force of that magnitude in time of peace?" Id. at 173. Madison, like Hamilton, believed that this form of consent is protected by the technical attributes of the arms themselves. His formulation of this argument in The Federalist No. 46 is perhaps even more evocative of the present nuclear circumstances than is Hamilton's: to imagine the endangering of government by a concentration of military power in the Executive means imagining an Executive with a "fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads." THE FEDERALIST NO. 46, at 298-99 (J. Madison) (C. Rossiter ed. 1961).
[32] For an argument about the incompatibility between art. I, § 8, cl. II and presidential first-use, see Stone, Presidential First Use is Unlawful, 56 FOREIGN POL'Y 94 (1984); see also F. WORMUTH, E. FIRMAGE, & F. BUTLER, TO CHAIN THE DOG OF WAR: THE WAR POWER OF CONGRESS IN HISTORY AND LAW 267-77 (1986); Cox, Raison d'Etat and World Survival: Who Constitutionally Makes Nuclear War?, 57 GEO. WASH. L. REV. 1614 (1989); Forrester, Presidential Wars in the Nuclear Age: An Unresolved Problem, 57 GEO. WASH. L. REV. 1636 (1989); Goldstein, The Failure of Constitutional Controls Over War Powers in the Nuclear Age: The Argument for a Constitutional Amendment, 40 STAN. L. REV. 1543 (1988).
[33] In 1987, two congressmen challenged presidential first-use in court. See Transcript of Proceedings at 8, Dellums v. Reagan, No. c-87-2587-JPV (N.D. Cal. Nov. 19, 1987) (holding that plaintiffs' claims were not yet ripe for decision, but acknowledging that "[p]laintiffs may have raised a new question that will require the attention of the United States Supreme Court, because of the uniqueness of the fact situation here"). Rather than appealing this ruling, the plaintiffs decided to wait for a reformulation of the case involving the participation of a larger number of senators and representatives.
The defendant in such a case may be the President alone or may instead be the President and others in a first-use position, such as those in the line of presidential succession as specified in the 1976 congressional hearings on first-use. See Hearings: First Use of Nuclear Weapons, supra note 8, at 39, 79, 94, 128, 213, 215 (describing scenarios in which persons other than the President might be in first-use positions). Testimony during those hearings suggested that the captains of the U.S. strategic submarines are also in first- use positions. Id. at 76, 77, 215. The gravity of this constitutional anomaly surrounding 35 unelected strategic submarine commanders was not addressed by the press and public in the decade following the 1976 hearings. In the last three years, however, it has begun to emerge into public view. See Miller, Who Needs PALs?, in PROCEEDINGS: U.S. NAVAL INSTITUTE 50-56 (July 1988); Moss, Water Bombs, THE NEW REPUBLIC, Oct. 3, 1988, at 20; Hampshire, Engaged Philosopher, New York Review of Books, Feb. 2, 1989, at 7; Scarry, A Nuclear Sub Accident Waiting to Happen, Phila. Inquirer, Nov. 6, 1988, at 9-E, col. 1. Attention to the issue was in part prompted by a 1987 study by Peter Stein and Peter Feaver documenting the absence of locks on submarine-carried nuclear weapons. See P. STEIN & P. FEAVER, ASSURING CONTROL OF NUCLEAR WEAPONS: THE EVOLUTION OF PERMISSIVE ACTION LINKS 72-89, 99-103 (1987).
In addition to cases about presidential first-use, art. I, § 8 has been the constitutional basis of cases about nuclear weapons unconnected to presidential action, such as the sequence of lawsuits about accidental computer launch brought by Clifford Johnson. See Johnson v. Weinberger, 851 F.2d 233 (9th Cir. 1988); Johnson v. Chain, No. 89-20265-sw (N.D.Cal. 1990); Johnson v. Weinberger, No. c-86-3334-sw (N.D.Cal. 1986). Also, either art. I, § 8 or the War Powers Resolution has been at the center of congressional lawsuits against presidents acting with conventional troops, such as in Iraq, see Dellums v. Bush, No. 90-2866 (D.D.C. Dec. 13, 1990); in the Persian Gulf, see Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987); in Grenada, see Conyers v. Reagan, 578 F.Supp. 324 (D.D.C. 1984); in Nicaragua, see Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C. 1983); and in El Salvador, see Crockett v. Reagan, 558 F.Supp. 893 (D.D.C. 1982).
[34] The second amendment cannot be categorically separated from the pleasures of hunting since the European and American history of that pleasure is itself entwined with issues of distributive justice. The conflation was visible, for example, during the French Revolution. In August of 1789, the majority in the General Assembly voted for a decree abolishing "the exclusive right of dovecotes and pigeon houses . . . . Pigeons will be encaged at times determined by the communities, and during this time, they will be regarded as game. Everyone will have the right to kill them." Winock, Chronique de 1789: L'annee sans pareille, Le Monde, Aug. 16, 1988, at 2, col. 1 (tranlated from the French). The decree, according to Mirabeau, asserted the principle of equality: "Every man has the right to hunt on his land, none has the right to hunt on someone else's land: this principle is as sacred for the monarch as for anybody else." Id. (translated from the French). The conflation of the personal right to hunt with the political right of arms also occurred in the United States. A proposed constitutional amendment emerging from the Pennsylvania ratification assembly included a provision asserting the people's "right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game." B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 665 (1975). The perception of intimacy continued into the nineteenth century in military tracts. William Sumner, for example, speaks of shooting game as a way the population remains limber in the use of its arms. See An Inquiry Into the Importance of the Militia to a Free Commonwealth, in A Letter from William H. Sumner, Adjutant General of the Commonwealth of Massachusetts, to John Adams, Late President of the United States; with his Answer, in ANGLO-AMERICAN ANTIMILITARY TRACTS 1697-1830, at 39-40 (R. Kohn ed. 1979) [hereinafter An Inquiry Into the Importance of the Militia]. Legal theorists in both the United States and Britain recognized the implications of hunting laws. "Blackstone," wrote William Rawle, saw "that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed by the makers of forest and game laws." W. RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 122-23 (1825) (citing 2 W. BLACKSTONE, COMMENTARIES *412).
[35] Because the right to bear arms is prior to such questions, revolutionaries have made it their first demand whether they were militarist or pacifist. During the first General Assembly in the French Revolution, Mirabeau argued that "it is impossible to imagine an aristocracy more frightening than that which is established in a state by the mere fact that one group of citizens would be armed and the other would not be." Meeting, Aug. 18, 1789, VIII ARCH. PARL. 455 (translated from the French), cited in D. Conrad, Gandhi's Conception of Human Rights, Civil Disobedience as Satyagraha, and Constitutional Legality 140 n.48 (unpublished manuscript on file with author). India presented a list of eleven demands to Great Britain, the eleventh requiring the rearming of the population. Gandhi argued that the population would decide whether or not to use its weapons only after those weapons had been restored. Id. at 139. He wrote: "Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms as the blackest." 2 M. GANDHI, AN AUTOBIOGRAPHY OR THE STORY OF MY EXPERIMENTS WITH TRUTH 666 (M. Desai trans. 1927). The issue of arms distribution also became a focus in the pacific revolution in East Germany when on December 14, 1989, the Parliament "decided to do away with the right of communist party authorities to possess or carry firearms," thereby ending the formal inequality of arms that had given the SED leadership access to the weapons from which the population itself was legally barred. Marion, Les autorites judiciaires doivent convaincre l'opinion de leur determination, Le Monde, Dec. 14, 1989, at 5, col. 3.
[36] See United States v. Miller, 307 U.S. 174 (1939); Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1876). For an analysis of the consistent emphasis in these decisions on the second amendment as a collective, rather than an individual, right, see Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961, 995-1000 (1975), reprinted in SENATE COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., REPORT ON THE RIGHT TO KEEP AND BEAR ARMS 130, 164, 166 (Comm. Print 1982) [hereinafter SENATE REPORT ON SECOND AMENDMENT]. Don B. Kates, Jr. points out that the 1939 case is the Supreme Court's "first and last extended treatment of the second amendment," but he adds to the nineteenth century list two cases in which the amendment figures more tangentially than in those cited above: Robertson v. Baldwin, 165 U.S. 275 (1897), and Scott v. Sanford, 60 U.S. 393 (1856). See Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 246-50 (1983). Kates provides strong arguments for the individual interpretation; but, more crucially, he points out the "false dichotomy between the exclusively state's right and the unrestricted individual right interpretations" that have inappropriately absorbed legal commentary. Id. at 273. "In fact," he adds, "the arms of the state's militias were and are the personally owned arms of the general citizenry, so that the amendment's dual intention to protect both was achieved by guaranteeing to the citizenry a right to possess arms individually." Id. On the confusion of individual and collective rights, see infra note 109 and accompanying text.
[37] The call for a Supreme Court reinterpretation, implicit in the many articles observing the small number of cases, is sometimes explicit, as when David Hardy wrote: "The formation of jurisprudence of the Second Amendment is nearly two centuries overdue." Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559, 638 (1986). Similarly, Sanford Levinson wrote: "The Supreme Court has almost shamelessly refused to discuss the issue . . . ." Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 654 (1989). Levinson also observed that both liberals and the legal academy continue to ignore the amendment at their peril, and he urged that "serious, engaged discussion" begin. Id. at 656-59.
[38] For the designation of the Con