THE SHIELD OF ACHILLES (41 page)

O
PEN ANY TEXTBOOK
on constitutional law and you will find discussions of the regulation of commerce and the power of taxation, religious and racial accommodation, class and wealth conflicts, labor turmoil and free speech, but little or nothing on war.
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The same is true of treatises on jurisprudence and legal theory. Yet who would deny the constitution-shaping experiences of war on the modern state? Think of the constitution of Japan, which was imposed by war; or that of Napoleonic France, which was extinguished by war; or that of the United States, which was established as a reaction to a revolutionary war and then transformed by a civil war. Even the discussion of the American Civil War is traced by such treatises mainly for its doctrinal effect, though in fact a civil war is the most revealing of the constitutional structure of the State because it lays open the anatomy of the body politic.

Open any textbook on war and you will find chapters on strategy, the causes of wars, limited war, nuclear weapons, even the ethics of war, but nothing on the constitutions of societies that make war—nothing, that is, on what people are fighting to protect, to assert, to aggrandize. A constitution is not merely the
document
that manifests the ways in which a society recognizes the rights of family, of property, of land and personal security, of commerce, of ethnicity and religious commitment, and of government itself: rather a constitution
is
these ways. Societies, all societies, are constituted in a certain way, and this way is their constitution. States, which direct the political affairs of most national societies, are also constituted in a particular way, and this is not merely reflected in their law, it
is
their law. But even the more sophisticated contemporary books on geopolitics do not deign to mention law, unless it is to denigrate lawyers and “legalistic” thinking. And so it is that the fundamental force fields of the State—the relation between law and war, and between legitimacy and violence: relations that yield the State's most basic expression of its identity, indeed that gave birth to the modern state—are rarely even mentioned, much less addressed. These relations, these force fields, are simultaneous: it is only when the State is authorized by the society to defend that society with violence that the State is also accorded the monopoly on violence domestically, and is accorded the right by the society of states to resist external coercion. History discloses no examples of states that have given up the constitutional authority to deploy domestic or international violence without ceasing to be states.

The State has two primary functions: to distribute questions appropriately among the various allocation methods internal to the society, determining what sorts of problems will be decided in what sorts of ways;
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and to defend that unique pattern of allocation by asserting its territorial and temporal jurisdiction vis-à-vis other states. These two tasks are, respectively, the work of constitutional law and strategy. History—the self-understanding of the society—is what enables the legitimation of constitutional law and strategy because history provides the means of giving an account of the State's stewardship—whether the State has fulfilled the requirement of its particular constitutional order.

In the preceding chapters it has been argued that there is a mutually affecting relationship between strategy and constitutional law such that some strategic challenges are of so great a magnitude that, rather than merely requiring more taxes, or more bureaucrats, or longer periods of war service, they encourage and even demand constitutional adaptations; and that some constitutional changes are of such magnitude that they enable and sometimes require strategic innovation. One cannot say whether, because of the development of light infantry and novel artillery tactics, the
eighteenth century state was superseded by a state that could exploit the human material of the masses, as for example occurred with the Prussian constitutional reforms of 1806, or whether, owing to the revolutionary constitutional changes of 1789 in France that destroyed the army of the ancien régime and brought forth a surge of popular enthusiasm for the new state, new military policies, like the
levée en masse
and Napoleon's tactics, came into being. Both are persuasive accounts of the birth of the state-nation and the death of the territorial state. Both of these narratives culminate in the copying of the new constitutional order of the State and of its strategic inventions by other states that cast off the old forms.
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Strategy and the constitutional order are mutually entailed. The common element to these two subjects lies in the state's quest for legitimacy.
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This quest leads us to the legitimating role of history: history is the medium by which the legitimacy of the constitutional structure is married to the success of the strategy of the state. For example, it was the constitutional order of the Habsburg state—dynastic, Catholic, multinational—that made the continued Spanish possession of the Netherlands so insistent a strategic goal, despite the fact that this region was far from Spain, and had different religious as well as different cultural and linguistic traditions. The Habsburg defeat not only ended the era of the princely state, it began the era of the kingly state of notably different constitutional arrangements. History gives the prestige of inevitability to decisive events, and cloaks state action, inner and outer, with legitimacy when a successful strategy is in harmony with the triumphant constitutional order. A crisis in legitimacy can be provoked either by external events or internal ones—usually the two go together—when the State becomes separated from its history. This happened to the Austro-Hungarian Empire in the late nineteenth century when it was unable to link its imperial state with any single national identity. A supple, flexible state will be portrayed in a way that allows for greater continuity with various strategic and constitutional innovations and thus offers a wider range of possible adaptations to necessity; a more rigid state will find its history is a straitjacket, confining it so tightly that only a political Houdini (like Bismarck) can break loose to survival.

The interplay between the military revolution that won the Long War—the development of nuclear weapons, an international communications system, and the computer (which made possible strategic deception and intelligence penetration to unprecedented effect)—and the constitutional changes that are both the consequence of that development as well as its enabling structure provide the subject of Part III. Suffice it to say at this point that the sense of identity of the nation-state, a state that defines itself by its axiomatic linkage to a people and its portrayal as their benefactor, is under considerable assault. Few contemporary groups, except those, such as the Palestinians or the Kurds, who are without states, seek their fulfillment in a relationship between their ethnic group and the nation-state. Indeed it is increasingly difficult for the nation-state to fulfill the functions that it added to its portfolio when it superseded the state-nation: not simply the maintenance of an industrial war machine of immense cost that is unable to assure the physical security of its citizens, but also the maintenance of civil order by means of bargaining among constituencies, the administration of juridical norms that embodied a single national tradition, and above all the management of the economic growth of the society in order to provide a continuous improvement in the material conditions of life for all classes.

These tasks were the nation-state's raison d'être. Yet today, market regulation by the State has become unpopular, many citizens have been effectively marginalized in the political life of their societies, and private business organizations have taken the initiative regarding international development. It is they who determine whether the economic policies of a state merit confidence and credit, without which no state can develop. At the same time, there are new security demands on the State that require ever greater executive authority, secrecy, and revenue. The constitutional shape that will emerge from this latest phase of transformation could be configured in several different ways. But before an understanding of these possibilities can be gained and the moral implications of the choices they present appreciated, we have needed to study in Part II the recurrent way in which the constitutional transformations of the State interact with its strategic innovations. Now we are in a position to ask what new demands for legitimation will be made upon the State, and how the experience of the Long War has fitted us to cope with these demands, to repeat the mixture of adaptation and innovation that has shaped the State heretofore.

My aim in presenting such a narrative is not so much to provide a standard history—there are better books for this, cited in the notes—but to depict the story of particular individuals acting within the choices presented by history. This avoids, I hope, the technological determinism of much politico/military history,
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and its attendant assumptions about progress, without pretending that statesmen could reinvent the choices that
faced them, choices—but not decisions among those choices—dictated to a great degree by the relationship between constitutional forms and strategic capabilities. All the transitions that are charted in Part II trace the State's constitutional and strategic change as it adapts, metamorphoses, thrives, and decays in ever-changing strategic circumstances, always striving for legitimacy in the new context in which it must compete.
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Over the long run, it is the constitutional order of the State that tends to confer military advantage by achieving cohesion, continuity, and, above all, legitimacy for its strategic operations. And it is these strategic operations, through continuous innovation, that winnow out unsuccessful constitutional orders.