On the Prudent Use of Constitutional and Other Principles

George Anastaplo


            A prominent veteran of the “underground” Weathermen movement publicly celebrated recently his anti-War career of two generations ago. His Cold War exploits were recalled, especially those in response to the Vietnam debacle. Particularly troubling was that the United States somehow became the successor to the French Colonialists in Indochina.

One incentive for such American military involvement had been the fear of a growing Chinese influence in Asia, if not even worldwide. Of course, there has been since then growing tension between Vietnam and China, tension (we now recognize) that evidently goes back for centuries. There has also been seen a growing dependence by the Vietnamese upon American support for a country that recalls longstanding resistance to Chinese domination.

It can be wondered, of course, how the United States could have been deluded into a two-decades-long campaign in Indochina that cost fifty-eight thousand American lives and perhaps two million Vietnamese lives. Particularly curious here are developments for several decades now that they have seen substantial American commercial investments in Vietnam. All this makes the determined American leadership during our Vietnamese involvement distressingly puzzling.


            Our Weatherman’s audience in Chicago appeared to be dominated by veterans of resistance to the Vietnam War. One could even be reminded of assemblies of conventional war veterans. This particular audience, too, had been to war together, sometimes with considerable personal and professional sacrifices.

One legacy of the Cold War for these people is deep suspicion of government (at least of our government). Much is made of freedom of speech and various modes of conscientious objection. Much is made also of revolutionary movements, at least elsewhere.

Any kind of military activity on the part of the Government of the United States is presumed to be highly questionable. The obligation of the General Government to provide for “the common Defense” seems to be considered too old-fashioned to be taken seriously today. In these circumstances such measures as a conscription law becomes virtually unthinkable.


            Skepticism could be expected, from such veterans of a decades-long Cold War resistance, about both the purported seriousness of and the proper responses to the September-Eleventh assaults. An extreme instinct of such skepticism can even take the form of a challenge to the official account of who was “really responsible” for those assaults. Few of the Cold War resisters need go that far to serve their cause.

Particularly troubling for such anti-Cold War veterans has been the 2003 invasion of Iraq. When no Weapons of Mass Destruction were discovered in possessions of the Tyrant in Baghdad, the motives as well as the judgment of the American administration could be called into question. Thus, still another form of American war-mongering could be suspected.

A bizarre feature of the 2003 assault on Iraq is seldom noticed.  It was launched by a President and Vice President who had used family and other connections to avoid military service in Vietnam, even though they had very much approved of conscripting young Americans to be put at serious risk there. It can be wondered, of course, whether Anti-War Champions can be as self-centered as their Pro-War counterparts.


            The most recent concerns of our vigorous Cold War critics can be directed at how Iran and Syria are to be regarded by the United States. What should be done about the possible development by the Iranians of nuclear weapons? And what should be done about the use of chemical weapons during the brutal civil war in Syria?

Our Cold War critics are troubled, of course, by what may be done about chemical weapons in Syria. They can hope, it seems, that international ministries may be able to deal with such matters effectively. But they do not trust the United States to use force there in a responsible and effective manner.

Much the same can be said about the prospects of the development of nuclear weapons in Iran. What is needed there they seem to say, is a carefully-tailored program that the United States cannot be trusted to develop with the restraint called for. Other objectives, it can be suspected, would corrupt any measures that this Country might undertake in Iran.


            It was in the course of comments about Syria and Iran that the featured Weatherman veteran of the evening said, in passing, something that can make the observer wonder about his overall judgment. He remarked that the only country in the Middle East that has both nuclear weapons and chemical weapons is Israel. Little, if anything, had been said about Israel up to this point – or, indeed, thereafter, except for the insistence that all such nuclear weaponry ought to be forbidden in the region.

There was something chilling about this casual condemnation of Israel. It was an indictment that did not seem either to surprise or to offend the audience. Israel, it seemed to be understood, was a serious obstacle to any program for the peaceful development of the Middle East.

Perhaps near the root of the casual hostility displayed toward Israel is the fact that it is a country that is well-armed – and that is has aroused (from its very beginning) the enduring enmity of most of its neighbors. Indeed, Israel must seem to these Weathermen veterans much like what the United States had seemed to them a half-century ago. In both cases, criticisms can be made of One’s Own against far-ranging worldwide allegiances and projects.


            It does not seem to be sufficiently “appreciated” by critics of Israel what it means to have a country evidently destined to be wiped out when the opportunity should present itself to its neighbors. The countries that stand there in decades-long enmity to Israel far surpass her in population, territory, and wealth. Or so it can seem to the Israelis.

After all, several attempts have been made to destroy Israel, it is no assurance to the Israelis that it may be in the long-term interest of the other countries in the Middle East (as well as in North Africa) to have a vibrant, productive Israel. Instead, a remarkably successful Israel can be regarded as a rebuke by all too many factions among its neighbors.

How seriously should the Israelis regard those critics that would strip her of weapons (and especially nuclear weapons), weapons that must have a sobering effort on would-be adventurers elsewhere? The fact that Israel has had nuclear weapons for decades, and has never used them, suggest they know that is in their interest not to use them except in the most extreme circumstances. How should they regard the demands by Middle East leaders here and there that Israel be destroyed?


            It will take at least another century before the Jewish people will be able to “relax” into a conventional existence after what happened to them during the Second World War. This deliberate massacre of them, it should be remembered, came at the hands of one of the most “advanced” peoples in Europe. Chance developments (going back to the First World War) that had had relatively little to do with the Jewish people had unleashed ferocious forces that saw most of the Jews of Europe (it is said, some six  million) systematically slaughtered.

Thus, special circumstances should be taken into account in promulgating (and, even more, in applying) general principles. It must be a rare ethical or political maxim that admits of no exceptions. We must wonder, for example, about the seeming inflexibility of one or more of Immanuel Kant’s rules.

That is, the sovereignty of prudence in the guidance of human affairs should be recognized, which can mean that much is to be said for the need for flexibility in laying down or enforcing general rules. Thus much is to be said for nuclear-free weaponry worldwide (and we should be apprehensive about not only what North Korea or Iran might do with such weaponry but perhaps even more about India and Pakistan. But a salutary restraint may be encouraged in the short-term in the Middle East if it is known that a highly-disciplined Israel has long had both nuclear weapons and reliable means for using them


            The alumni of the Weatherman movement do make much of categorical prohibitions of various weapons of mass destruction. I confess to some sympathy for their concern, having written at length myself about dubious features of Allied annihilation bombing of cities during the Second World War. This could be seen during the closing years both of the war against Germany and of the war against Japan.

It is hard to deny that those countries could be said to have “asked for” what they suffered. But much is to be said for a general respect for the Rules of War. Even so, consider a recent reminder from Manchester, England (in the Times Literary Supplement, October 4, 2013, p. 6), under the title, “Bomber Command”:

Sir, – It is depressing to read again, in the review by John Gooch of Richard Overy’s The Bombing War (September 20), a historically inaccurate understanding of Bomber Command’s night campaign against Germany. Flying over Germany in daytime without fighter escort was suicide. So there was no choice but to bomb at night before 1944. Bomber Command, certainly up until 1944, had no choice but to bomb whole areas of cities because they couldn’t hit anything else with any accuracy. Bombers were lucky to find a city, let alone anything specific in it. The contrary view underestimates the difficulty of finding a target at night. The reviewer fails to mention this vital fact. Of course, we might have chosen to do nothing. But then for a considerable period no one would have been opposing Nazi Germany, and from 1939 to 1944 we would have been impotently twiddling our thumbs, while still being attacked by Germany.

            Thus, one’s weakness and vulnerability can “naturally” lead to some “adjustments” in the rules to be generally respected. But when one is in the ascendancy, should not one make more of an effort to recognize salutary rules? A failure to do this deprived us of the opportunity to subject a captured Osama bin Laden to a public trial that could have had some of the salutary consequences of the Nuremberg Trial of 1945-1946.


            Some of the Weatherman remnants may wonder, of course, whether the Israelis are “entitled” to be where they are. That might bear on their assessment of what the State of Israel has been up to since its founding in 1948. It should be noted, if only in passing, that what the Jews did to the rights of Palestinians then was probably less severe than what has been done by Muslim states since the Second World War to long-established Jewish communities in North Africa and the Middle East.

A more nearly fundamental response on behalf of the establishment of the State of Israel can invoke reports of a Divine territorial allocation to the People of Israel thousands of years ago. Are not Christians and Muslims obliged to take such an arrangement seriously? And are not the Jews themselves elevated whenever they sincerely see themselves as the people entrusted from On High with such a Mission?

Should it be recognized as well that prudence, too, is grounded ultimately in the greatest authority? This is evident in Moses Maimonides’s Letter on Apostasy. It is evident as well even in our Declaration of Independence, where it is recognized that recourse to a fundamental (if not even a divine) right of revolution should be governed by dictates of prudence.

These remarks (prepared for a Loyola Chicago School of Law Jurisprudence Seminar, October 15, 2013, should be included in Volume X (Reflections on Habeas Corpus, the Bill of Rights, and the Constitution) in my projected ten-volume Reflections series (the fifth of which was published in 2013).



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