Dudziak on Death and the War Power

Mary L. Dudziak, Emory University School of Law, has posted Death and the War Power:

In the vast literature on American war powers, attention is rarely paid to the product of war – the dead human body – and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress and courts are in the foreground. Killing in war is thereby a background phenomenon – an aspect of the social context within which the war powers are exercised. This Essay puts death at the center of the analysis. Drawing upon the insights of important recent historical works on death, I argue that the dead body has a political life. The political history of American war death recasts an important problem in the history of American war powers: the atrophy of political restraints on presidential power.

Using historian Drew Gilpin Faust’s idea of a “republic of suffering” in the Civil War as a point of departure, the Essay argues that the culture of American war changed when American wars became only foreign wars. The principal character of American civilians’ relationship to war death in the 20th century was distance from the carnage. Distance accomplished two things: first, a “republic” framed in relation to war death was lost; and second, the U.S. government could exert control over what civilians at home could perceive. Massive mobilization during World War II might appear to be a challenge to the argument that distance from the battlefield matters, so the Essay examines the American civilian experience with war’s violence during that war. Using censored and uncensored World War II casualty photographs, I show the way the very view of war death was managed by the U.S. government for the purpose of maintaining domestic mobilization. Civilians therefore engaged a curated view of death meant to enhance their support for the war effort.

The change over time in the civilian experience with war is not recognized in the literature about war and American law. Instead, legal scholars tend to use the Civil War as a more important historical example than Cold War conflicts, even though the Cold War era bears more resemblance to the present context (militarily and in the impact on U.S. civilians). Meanwhile, cultural distance from war death has increased, helping to produce the profound apathy that characterizes contemporary American war politics. This apathy enables the current legal structure of war authorization: Congress fails to act, and presidents rely on new interpretations of outdated authorizations, or their own constitutional power. Ultimately, I argue, a crucial and unexamined factor in the atrophy of political restraints on presidential power to use military force is the distance between American civilians and the carnage their wars have produced.