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Vanderbilt Law Review

Mark E. Brandon

First Page

1815

Abstract

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both in the making of the order and in the regular operation of government); (2) some notion of limited government (whether by the designation of purposes for governmental action, the specification of rights, or the allocation of authority among institutions); and (3) rule of law (which connotes the regularization of processes by which public norms are made and applied). Whatever the precise contours of the concept, the claim that the success and strength of the United States derive from a commitment to democracy (or, as I shall use it here, constitutionalism), has an almost intuitive appeal. It is my sense, however, that even a cursory look at the United States' record of diplomatic, military, and covert initiatives- the regimes it has supported, opposed, or toppled, and how and why it has done so-would raise doubts about that commitment.

In this essay, I give voice to those doubts. I first observe that much of the history of American prominence-even pre-eminence-in the world is a story as much of military conflict as of constitutionalism. Second, I argue that the nation's persistent engagement in military conflict is constitutionally significant. By "significant" I have in mind two measures, although I do not attempt to specify them precisely in this essay. One is that the persistent use of force has altered consequentially the norms and institutions that constitute the United States. The other is that, whatever their cause, certain trends of American constitutional development have the potential to do mischief and that this potential is exacerbated by conditions of warfare, especially when those conditions are continual. I identify five general areas of concern-five areas in which these trends or consequences might be worrisome-from the standpoint of constitutionalism: national ethos, rights, the operation of republican government, the allocation of institutional authority, and the concept of sovereignty. I argue that the trends or consequences within these domains are no less worrisome because the Supreme Court of the United States has sometimes given anti-constitutionalist policies the cover of law. Even if we assume that the nation has been consistently justified and effective in its uses of force, an irony follows: In successfully maintaining a constitutional order, the nation may well be weakening its constitutionalist roots.

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