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Tuesday, September 19, 2023

Constitutional Friction

Richard Posner wrote a short book about Bill Clinton's impeachment that contained a fascinating insight. High-profile constitutional disputes share some of the attributes of war described in Carl Von Clausewitz's classic "On War." "On War" is probably the greatest unfinished work ever written (Clausewitz died in an epidemic before the work was complete) and is more philosophic than military.

One of Clausewitz's observations was that war never goes according to plan. (Mike Tyson updated this idea by saying that "Everyone has a plan until they get punched in the mouth."). Complex constitutional litigation (or interpretation) can be similar, in that the issues take on a life of their own and there are often obstacles that don't become clear until the dispute begins. (Clausewitz called this friction in war.)

Another of his points was that there are many surprising twists and turns in war. Things never move in a straight line. This is also true for complex or novel constitutional litigation or disputes. Ordinary litigation is more predictable.

Finally, Clausewitz emphasized the role that chance played in war. You can say the same for some constitutional cases, as I've discussed in some of my historical work. (Senator Robinson's death in the midst of the Court-packing fight might be one example, though people still argue about how important that random event was in defeating FDR's plan).  

Posted by Gerard Magliocca on September 19, 2023 at 01:37 PM | Permalink


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