December 7th, 1941 was a day that changed everything.
Or maybe not, argues University of Southern California Professor Mary Dudziak in her provocative new paper, "Law, War, and the History of Time". Presenting at the Law School's American Legal History workshop, Prof. Dudziak critiqued the common conceptions of "wartime" and "peacetime" as an artificial binary. These terms imply that war is a discrete event which starts at one concrete point in time and ends at another, followed by peace, another discrete period of time with solid temporal boundaries. By thinking of war in this way (as something episodic, often ushering in a "new era"), she claims, scholars and policy makers make at least two serious mistakes. First, the notion of concretely bounded wartimes indicates that war policies are temporary -- that is, they will expire when the war concludes. Second, when war is a discrete event, historians don't think to look for war related impacts outside these seemingly fixed temporal boundaries.
Prof. Dudziak counters that America's history with warfare makes it difficult to see these boundaries as anything but constructed. "Linear time is social time", as Carol Greenhouse puts it, and the framing of war as bounded within our comfortable guideposts of time (hours, days, months, years) serves important social functions. However when the rubber hits the road, it turns out that it is far more difficult to determine what these borders are. World War II seems, at first blush, to be the paradigmatic case of a bounded war: 1941-1945. Yet Prof. Dudziak illustrates that things are considerably more complicated, and depending on one's definitions you could push the "start" of the war back to 1934 and the "end" as far forward as 1952. Hence, the Supreme Court in Lee v. Madigan had to determine whether the United States was still at war in 1949. And Justice Douglas ended up splitting the baby, ruling that the nation may be "at war for one purpose and 'at peace' for another."
Another series of events Dudziak uses to buttress her points are the flag salute cases: Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943), where the Supreme Court first affirmed and then struck down compulsory flag salute statutes in the face of constitutional challenges. Though many scholars identified the difference between these cases as merely the difference between the US being at war and at peace, Dudziak musters considerable historical evidence problematizing this outlook. Justice Frankfurter, who wrote the lead opinion in Gobitis, clearly was in a war state of mind, and conceptualized his opinion as being a national security question ("National unity is the basis for national security."). Certainly, American judges were not unaware of the warfare raging in Europe at the time of Gobitis. The upshot of Prof. Dudziak's paper is that the issues we normally think of as "war" and "peace" concerns are always bleeding into each other; at no point do we simply stop thinking about national security or stop thinking about civil liberties.
During the workshop, there was some pushback as to whether political actors had ever bought in to the wartime/peacetime binary as wholly as Prof. Dudziak seems to suggest. One alternative is that the various forms of "time talk" (discrete war, discrete peace, or blended) are deployed far more consciously, in pursuit of more explicit political ends. A citizenry which conceptualizes itself as in a discrete time of war, after all, is more likely to enable certain policies, and being in that frame of mind activates the salience of certain modes of political argument. Dudziak notes Treasury Secretary Henry Morganthau's quote that we “use bonds to sell the war, rather than vice versa." The bonds, in other words, were critical towards reinforcing the popular view that this was wartime -- a special time, a time when the nation demanded unity and sacrifice. At other times, America has invested considerable energy in seeking to create a concrete "peacetime": President Harding's "return to normalcy" being a prime example.
However, it is not necessarily true that in every case it is to the state's political advantage to place persons in this sort of binary state of mind. In the 19th century, for example, radical Republicans worked diligently not to enforce a rigid boundary between "war" and "peace" in the "post"-(if I can use the appellation after this article) Civil War years, but to blur it. The rationale was not difficult to see: the continued political efficacy of "waving the bloody shirt" depended on the voters continuing to view themselves as in a hybridized state of war and peace. The reconstruction amendments, too, were passed in a legislative climate that seemed to clearly and consciously blend wartime and peacetime together.
Closer to home, the rhetoric after 9/11, while emphatically proclaiming that a new era had begun, was equally insistent that the new age may well be timeless: a war without end. Professor Dudziak devotes quite a bit of time discussing how the rhetoric surrounding the War on Terror has enjoyed considerably fluidity -- a fluidity I take to be indicative of the underlying political implications which attach to one conception of wartime versus another. In Boumediene, Justice Kennedy worried that this sort of unbounded warfare might sanction endless detention of combatants. Interestingly, the Bush administration made similar arguments warranting why such detentions were necessary: namely, because this war, unlike (how we think of) wars past, may not end. But the terrain upon which this argument played out was one in which the distinction between war and peace had already been blurred. The deployment of the indiscrete warfare frame materially changed the landscape upon which the legal arguments played out. It is not a stretch to imagine that the interpolation of various time talks -- both those which try to entrench stable borders and those which try to undermine them -- is done cognizant of these social and political impacts.