Chapter 18: The Circle of War and Emergency
...when the people of Himera had chosen Phalaris dictator and were on the point of giving
him a body-guard, Stesichorus said to them these words — “A horse alone occupied a
meadow, but a stag came and did much damage. The horse wished to avenge himself and
asked a man if he could help to punish the stag. The man consented, on condition that the
horse would submit to the bit and allow him to mount him, javelins in hand. The horse
agreed to the terms and the man mounted him, but instead of obtaining vengeance on the
stag, the horse from that time became the man’s slave” — Then Stesichorus added “take
care lest, in your desire to avenge yourselves on the enemy, you be treated like the horse.
You already have the bit, since you have chosen a dictator; if you give him a body-guard
and allow him to mount you, you will at once be the slaves of Phalaris.”
“If the President cannot perform an act which is necessary though illegal, then the law
must be construed in such a way as to make legal every act which is necessary.”
Justice Arthur Goldberg once borrowed a quip from debates about pornography to
answer in brilliant earnest the question Is it war or not? He simply said “I know it when I see
it.” He did not mean thereby to exalt solipsistic judgment. This maxim implicitly recognizes
that the speaking I is part of a community and is fully apprenticed to its sense of decorum.
That
is, such a self-evident judgment is only sufficient when others agree: “I know it when we see it.”
The hammering out of relevant concurrence takes place over long time and large space. This
process — the formation of common sense — unfolds within the broadest compass of political
life. It is an essential part of the power to make war. We shall work back around to it in the
following pages.
For now, let us confine the question — Is it war or not? — within a narrower sense of the
political. The United States Constitution includes the prospect of war. At the brink of conflict,
the Constitution’s several explicit assignments of power stand out. Certain powers to Congress
and certain powers to the Executive.
This separation of powers may be seen as checking each of them, but the latter does not
follow from the former. In fact, the familiar phrase — checks and balances — is a tidy curtain
drawn over complex and disorderly process. Despite widely-spaced assignment these various
powers overlap. And, as James Madison observed, they must. “[T]he Constitution by no means
contemplates total separation of....branches of Government.” At the most, it establishes
0An apprentice is not a slave, and may transgress or play with his informe.
P.A. Meyers — Chapter 18 of The Position of the Citizen After September 11 — page 1
Convention