Making Law, Making War, Making America (revised 12/6/06)

It is often said that in times of war, law is silent, but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a war, and helped cabin other uses of force as peacekeeping, or other non-war actions. The laws of war, by identifying forms of warfare that crossed the humanitarian line, also helped carve out forms of warfare that were right and noble. It was in the realm of international law that law was turned to with utopian hopes more than once during the century, first to outlaw war itself, and then the more modest, but still ill-fated, quest to create a world body that would broker disputes between nations and avoid the inevitability of war. If law helped to make war, war also made law in the twentieth century. While it has been common to see war's impact on American legal history as episodic, this essay argues instead that the impact of war and national security was central and continuing. War is the mother of states, political scientists have argued. As an engine of statebuilding, war also fueled the development of law related to American statebuilding. Government programs and regulations created during a war did not go away but were drawn upon afterward to serve new purposes. In this way, war-related legal developments became entrenched. The Supreme Court was affected by wartime pressures. While the beginnings of what is sometimes called the New Deal revolution happened before the U.S. entered World War II, caselaw on Congressional power was consolidated and extended during the war. When the Court turned to individual rights, the story has not been a simple one of a pendulum swinging between rights and security. Instead, security concerns often informed the Court's jurisprudence, but security might be advanced by contracting, expanding or modifying rights, depending on the context. In Brown v. Board of Education, for example, racial discrimination was an international embarrassment, and expanding rights enhanced national security. The story of Brown helps us to see another important way that law and war together made America during the twentieth century. Projecting an image of American justice can be central to maintaining a conception of American democracy - a story of America for the world. This was seen as essential to U.S. prestige and national security during the Cold War. This became a central issue again after September 11, especially after the exposure of abuses at the hands of Americans at Abu Ghraib. The U.S. seemed to retreat from subordination to legal regulation, as if law itself would undercut American security. But the story of the war, and conceptions of its lawfulness, informed the world's understandings of American identity in a way that no president could control. The 12/6/06 version includes the draft bibliographic essay.