— Volume IV No. 3: October 2008 —

"Consent, Consumers, and the Constitution." Review of Terror and Consent: The Wars for the 21st Century by Philip Bobbitt

Philip Palin

Philip Bobbitt has written another big book full of big ideas. He examines “change in the constitutional order – from nation state to market state – and whether that change will result in the triumph of states of consent or states of terror” (p. 4).

According to Bobbitt there is a troublesome tendency by those in power to patronize those they seek to protect. Rather than citizens to be engaged, the American people have been treated as consumers to be assuaged. This approach, he argues, only increases our vulnerability to terrorism.

Bobbitt, professor of jurisprudence at Columbia University, perceives we are in the latter days of the constitutional order formed from the Thirty Years War and the Peace of Westphalia (1648). Our modern notion of the state emerged from this struggle. “Give us power, the (princely) State said, and we will better protect the person…” (p. 86). The American and French revolutions accelerated the succession of the princely state to the nation state.

The nation state bases its legitimacy on having undertaken the task of maintaining, nurturing, and improving the material conditions of it citizens whose equal rights to well-being derive solely from their membership in the nation itself. The nation state set itself against the unfettered market. Nation states asserted their legitimacy on the basis of a characteristic claim: give us power, they said, and we will improve the material well being of the national people (p. 86).

Twentieth-century nation states battled over different approaches to improving material well being. Among the contenders were capitalism, communism, fascism, and socialism. But consumerism won.

We have learned – paradoxically for some – that consumption creates wealth. Consumers crave choice. Producing more choices spurs economic creativity. Economic creativity delivers more choices and a virtuous (or vicious?) cycle takes hold. This is a thesis Bobbitt set out in his previous book, The Shield of Achilles: War, Peace, and the Course of History (2002, Knopf).

The insatiable nature of the consumer economy, however, threatens the very foundation of states of consent. Consumers are different than citizens. Citizens rally together for protection. Consumers compete for differentiation. Consumers want to be informed enough to protect themselves, but tend to be annoyed when the “nanny state” interferes with their choosing. “Market states say: Give us power and we will give you new opportunities” (p. 88).

We are, according to Bobbitt, in the throes of a profound transition from nation state to market state. The turmoil caused by this transition spawns contemporary terrorism. Terrorists might be seen as radical citizens who are alarmed by the withering of the nation state and the protections it promised.

These citizens observe the growing influence of consumerism and are repulsed by its promises and claims. Where consumers proudly point to expanded opportunities, citizens perceive unnecessary – potentially perverse – temptation. While consumers pursue material wealth, citizens complain of aesthetic, spiritual, or intellectual poverty. Consumers celebrate their individuality, even as citizens mourn the triumph of selfishness and the diminishment of shared community. 

Many of us recognize these contending perceptions in ourselves. There is a lack of resolution that causes concern, and Bobbitt argues this concern can be addressed through explicit adjustments in the strategy and law of nation states. The antithesis of the nation state can be accommodated in a meaningful synthesis of nation state and market state. We can be consumers and citizens. But for some citizens such an accommodation is seen as an existential threat. They will fight ferociously to combat corrupt consumerism, even using the expanded opportunities of the market state to craft their own image of the perfect nation state. Bobbitt explains,

This transition from one constitutional order to another will occur over many decades, and there are many forms the market state might take. If the past is any guide, the transition will not be completed without violent conflict. In the past, decades-long epochal wars brought about these transitions. It may be that the wars against al Qaeda, the Taliban, and Saddam Hussein’s regime were the first engagements of this new conflict, the epochal war of the market states, the Wars against Terror (page 124).

Bobbitt is confident of the potential benefits to be derived from the market state. But that potential could be lost in how we manage the transition and, especially, in how we shape our strategy and laws in response to the terrorist threat. These transitional periods have always been treacherous. But never before have the tools of reaction and resistance been so powerful.

In earlier centuries, liberationist, secessionist, and other political groups have used terror to gain or keep state power… In the twenty-first century terrorism presents a different face… The greatest difference, however, will lie in the potential combination of a global terror network and access to weapons of mass destruction… This looming intersection of an innovative organization and a novel means of terror will require a fundamental rethinking of conventional doctrines in international security and foreign policy, that is, in strategy and in law (p. 84).

Bobbitt expects the worst. He expects terrorists to succeed in horrible attacks killing thousands and even tens of thousands. He works to persuade us that our only meaningful defense is the realism of preparing now for this awful success. Only by recognizing our vulnerable reality can we mitigate the impact of the attacks that are certain to come.

Bobbitt’s mitigation goes far beyond resilient design of critical infrastructure; it is focused on resilient design of our constitutional order. He argues for vigorous – some will say Draconian – measures of prevention, preparedness, and mitigation. But unlike so many making similar arguments he insists these measures must emerge from thoughtful, transparent, and principled legislation, executive enforcement, and judicial review. We must behave wisely and consistently as a state of consent or – without ever intending so – we are likely to end up living in a state of terror.

The states of consent must develop rules that define what terrorism is, who is a terrorist, and what states can lawfully do to fight terrorists and terrorism. Unless we do this, we will bring our alliances to ruin as we appear to rampage around the world, declaring our enemies to be terrorists and ourselves to be above the law in retaliating against them. We will become, in the eyes of others, the supreme rogue states and will have no basis on which to justify our actions other than the simple assertion of our power. At the same time, we must preserve our open society by careful appreciation of the threat that terror poses to it and not by trying to minimize that reality or to appease the sensibilities of people who would wish it away… We must do this because an open society depends upon a government strong enough and foresighted enough to protect individual rights. If we fail to develop these legal standards, we will find we are progressively militarizing the domestic environment without having quite realized that we are at war. And, when a savage mass strike against us does come, we will react in a fury that ultimately does damage to our self-respect, our ideals, and our institutions (p. 394).

Bobbitt’s writing is Talmudic. Depending on the reader’s purpose or taste this might be a compliment or a critique. The ellipsis in the quotation above encompasses several legal and operational steps that Bobbitt advocates. He builds a case for these specific steps with detail that resists easy summary. In this detail Bobbitt invites the reader to join him in thinking through the goals, principles, and practicalities of confronting a profound threat while preserving our core values. This process of principled dialogue leading to shared decisions is a modeling of what he argues must characterize a state of consent.

Bobbitt’s argument breaks out of the conventional security vs. liberty dilemma. He insists we must be prepared for the worst and be tough with a dangerous adversary. But we must also hang tough with the Constitution. In particular, we must be transparent in our toughness. Consent is meaningful only when it is informed.

If Bobbitt was a scriptwriter instead of a lawyer and scholar, his concept pitch would have us imagine the love child of Jack Bauer (Kiefer Sutherland) on 24 (the Fox counterterrorism series) and MacKenzie Allen (Geena Davis) on Commander-in-Chief (the ABC series about the first female President). Fight the bastards, but keep the moral high ground. James Bond as lead counsel for the ACLU. Rambo as a senior partner in the best Fourth Amendment law firm in the nation.

Despite the terrorist successes that Bobbitt predicts are ahead, he is equally confident that we can – as a society, culture, and constitutional order — survive and thrive. He waxes poetic on the potential benefits of the market state if — big if — we prepare ourselves for the dark days that will come and remain full-fledged states of consent.

If they do not lose — if the U.S. and the E.U. endure without compromising the basic ethos and practices of consent — they will steadily and surely prevail over states of terror that depend upon a climate of fear not only to intimidate other states, but to establish their own authority with respect to the persons they seek to govern. The states of consent will prevail if they endure because their enemy must win. States of terror can maintain themselves in power only by fresh threats that, if successfully resisted, steadily erode their legitimacy. States of consent don’t need to win; they simply need not to lose. Indeed for such states, not losing amounts to winning.(pp. 182-183).

Terror and Consent was published in spring 2008. I do not perceive it has yet had the impact for which Bobbitt may have hoped. It is easy to blame the 688-page length. But that did not discourage readers of the 784-page Harry Potter and the Deathly Hallows. I wonder if the problem may be Bobbitt’s brave embrace of the tragic.

If the reader is absolutely sure that terrorists will fail in their stated intentions, Bobbitt’s thesis unravels. Few of us are so certain. But we are – at least most of us – unwilling to accept the full implications of our uncertainty, much less accept Bobbitt’s inevitable tragedy. He is sensitive to our state of suspended judgment. Bobbitt appends a brief and curious Coda to his main text. His purpose, perhaps, is precisely to address our own prayer that this cup might pass from us.

The deaths and destruction caused by twenty-first century terrorism have thus far been negligible compared to those of twentieth century conventional wars. We must, however, prepare our defenses, chief of which is our ingenuity and adaptability. When we finally determine to take up the Wars against Terror in earnest, we will face a threat to mankind that is unprecedented and is potentially measureless in its tragedy. Having prepared, however, we will act to preclude such tragedies; having acted in time, we will have preserved our liberties despite the historic suffering we could not in the end prevent; having protected our liberties while enduring such awful pain, we will have prevailed. We must each play our part as though the entire plot depended on it, because it just might (p. 547).

Philip J. Palin is a senior fellow with the National Institute for Strategic Preparedness and co-author of Catastrophe Preparation and Prevention (McGraw-Hill, 2008). He can be contacted at ppalin@nisp.us.

Copyright © 2008 by the author(s). Homeland Security Affairs is an academic journal available free of charge to individuals and institutions. Because the purpose of this publication is the widest possible dissemination of knowledge, copies of this journal and the articles contained herein may be printed or downloaded and redistributed for personal, research or educational purposes free of charge and without permission. Any commercial use of Homeland Security Affairs or the articles published herein is expressly prohibited without the written consent of the copyright holder. The copyright of all articles published in Homeland Security Affairs rests with the author(s) of the article. Homeland Security Affairs is the online journal of the Naval Postgraduate School Center for Homeland Defense and Security (CHDS). http://www.hsaj.org

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