March 18, 2003
"A Great Gamble, by a Man Many Don't Trust"--An Op-Ed by Prof. Jack Balkin
(This essay originally appeared in the March 18, 2002, edition of the Hartford Courant.)
A Great Gamble, by a Man Many Don't Trust
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment
Very soon, we will be at war with Iraq.
Many Americans will now rally around the president. All Americans will rally around and support our troops in the field. All Americans hope, as I do, that the war will be short and with a minimum loss of life for both sides.
It does not matter what our position was before. Once war has started, we want things to go as well as they possibly can. We want our generals to do what it takes to win.
But the fact that we support our troops once war has begun does not mean that we would have chosen this war in the first place. Rather, the man who sits in the Oval Office has placed our country in this precarious position. Our troops are mobilized and will soon be in harm's way. They must fight to survive.
This is not a war of necessity. It is a war of choice. A choice made by George W. Bush and his advisers.
All this might be bearable if a president clearly and legitimately elected had taken us into war. But many Americans, myself included, do not believe that Bush legitimately won the election. We believe, and continue to believe, that the election that brought him to power was stolen.
To many Americans, it is especially galling that we are being pushed into an unnecessary war by a man who did not lawfully attain the vast power he now enjoys. It is one thing to democratically elect a president who makes bad decisions. It is quite another if the president who leads us into danger was forced on the country through trickery and deceit.
Make no mistake: A man who took power illegally is now taking us into war. And if he miscalculates, he may well bring blood and destruction on countless numbers of people.
The election of 2000 seems so long ago for many of us. But the consequences of that struggle haunt everything that is happening today.
The president's political legitimacy was established not by the election of 2000, but by the events of 9/11. Our country was attacked, and we needed to put aside previous disputes in order to respond to that attack. George W. Bush was, quite literally, the only president we had.
Moreover, no matter who became president, that person would have invaded Afghanistan and made war on the Taliban in response to 9/11.
But at that point, important differences began to emerge. It began to matter greatly who held power.
It is hardly clear that a President Gore would have made the centerpiece of his administration a war on Iraq, and that he would have engaged in blunderbuss diplomacy that would fracture alliances of 50 years' standing and squander all the goodwill America enjoyed in the wake of the terrorist attacks.
Nor is it clear that Gore would have hatched such a grand scheme against Iraq while disregarding the mounting threat simmering in North Korea.
Every day, the consequences of the disputed election of 2000 become clearer and clearer, and that clarity is not to the advantage of the man who now wields power over us and over the whole world.
For those Americans who think that the election was illegally concluded, the path our country is traveling is deeply troubling. For we know that we would not be moving in this dark and dangerous direction but for a constitutional coup, an unlawful accession to power. We now see, all too clearly, that the power of the presidency, obtained dishonestly and unconstitutionally two years ago, has brought us not peace, but only more struggle, more danger, more strife.
The constitutional coup of 2000 has led to a great gamble by a man many Americans do not trust, a gamble that threatens ever more wars, ever more death and destruction.
If war comes, I want our troops to win. I will pray that our generals are discerning, that their strategies are sound and that their victory is speedy.
But I have no confidence in the man who sent them into war. He knows only how to seize power, not how to use it wisely.
Alea jacta est. The die has been cast, by a would-be 21st-century Caesar.
Let us hope that we do not end up paying for his arrogance.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and the author of "The Laws of Change" (Schocken Press, 2002).