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Comprehensive analysis proves legal checks can work

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Tying linguistic mediation to sovereignty challenges feeds the conservative playbook---the aff’s supposed transgressiveness gives neo-cons justification for unrestrained executive warmaking

Passavant 10 - Associate Professor of Political Science Habart and William Smith College

(Paul, “Yoo's Law, Sovereignty, and Whatever,” Constellations, 17 doi: 10.1111/j.1467-8675.2010.00614.x)

For some on the left, it has become conventional to celebrate, if not cultivate, pluralism, whether this means multiple forms of being or multiple interpretive possibilities with regard to texts. It has also become conventional to be critical of “sovereignty” and of “law.” Multiplicity is thought to be a threat to sovereignty, and this threat is thought to be democratizing or a force that resists oppression. The Italian philosopher Giorgio Agamben exemplifies these tendencies within contemporary political and legal theory. In some of his earlier and less well-known work, he aspires toward a “coming community” that he calls “whatever being.” Whatever being embraces the infinite communicative possibilities of language as pure means beyond a preoccupation with true or false propositions.∂ In his best-known work, Agamben links sovereignty to the production of rightless subjects and the Nazi death camps. He urges us to rethink the very ontological basis of politics in the West, creating a human being beyond sovereignty or law, in order to avoid perilous outcomes. One key to surpassing the logic of sovereignty, according to Agamben, is whatever being's positive relation to the singularities of life and the multiplicities of communication.∂ Whatever being is also being outside of law. If “law” persists in this “coming community,” it would be a “law” that has become deactivated and deposed from its prior purposes. “Law” will have become an object for play – something to be toyed with the way that children might come upon a disused object and play with it by putting it to uses disconnected from whatever purpose this object might once have had.∂ Why does the fact of playful communicative possibilities lead to either more democracy or a less brutal world? The most conservative United States Supreme Court justices have recently embraced the fact that texts are open to multiple interpretations. For example, Samuel Alito has suggested that the meaning of public monuments is open to multiple interpretations that may shift over time to avoid a potential First Amendment establishment clause problem over a monument of the Ten Commandments in a public park.1 Yet, as the late Justice Blackmun has written regarding state endorsement of religion, “government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.”2 Recognizing the possibility of multiple interpretations, as this instance shows, does not lead necessarily to outcomes friendly to democracy.∂ In this essay, I investigate how playing with the multiplicity of communicative possibilities can, contrary to Agamben's expectations, actually facilitate aspirations for unitary sovereign power. My argument unfolds in the context of the legal arguments put forward by Bush administration lawyer John Yoo, particularly those enabling torturous interrogations.∂ Those, like Agamben, who favor interpretive pluralism in itself rarely, if ever, have right-wing supporters of unchecked presidentialism in mind. Reading the scholarship and legal memoranda of John Yoo, formerly in the Bush administration's Office of Legal Counsel (OLC) and presently a University of California, Berkeley law professor, however, approaches an experience of pure mediality or of law that has become deposed or disconnected from its purposes. Yoo is well known as the author of the key legal memoranda asserting the president's discretionary power to make war, to engage in warrantless surveillance, and, most infamously, justifying torturous methods of interrogation. Some scholars refer to Lewis Carroll's Alice in Wonderland to describe the experience of reading Yoo's legal memos.3 Is John Yoo an exemplar of the whatever being and pure mediality that Agamben describes and to which he contends politics should aspire?∂ In this paper, I describe how Yoo gestures toward pure mediality, as he indicates the experience of language itself as pure communicability or as pure means in his legal work when he emphasizes the openness of law to being exposed to new, different, flexible, or plural interpretive possibilities. I argue, however, that Yoo is not well described as whatever being. His work repeats too consistently in the direction of absolute presidential decisionism to be open to whatever.∂ Instead, Yoo's work may capture a broader development within our society that Agamben describes as the emergence of whatever being. Without saying that there has been no resistance to the Bush administration's warrantless wiretapping and policies of torturous interrogations, the contrast between the response to the Nixon administration and the Bush administration is striking. Richard Nixon resigned one step ahead of impeachment in the midst of mass protests against his presidency. The articles of impeachment, for instance, addressed how Nixon engaged in warrantless wiretapping, and refused to execute laws passed by Congress faithfully while repeatedly engaging in conduct that violated the constitutional rights of citizens. Congress also passed major acts of legislation to prevent a president such as Nixon from ever again abusing power the way he had. These laws include the War Powers Act of 1973, the Budget Impoundment and Control Act of 1974, and the Foreign Intelligence Surveillance Act (FISA) of 1978.∂ In contrast, almost no one seems to have noticed that the Bush administration claimed power to make war at the president's sole discretion. Additionally, upon learning that the Bush administration engaged in criminal acts of surveillance, Congress amended FISA in the summer of 2008 to expand the government's power to spy on Americans, while immunizing from legal accountability non-state actors who collaborated with the then-criminal acts of government officials who followed Bush's illegal orders. Congress tried to make it impossible for those detained to question, legally, their detention or to bring the torturous treatment they endured to a court's attention, while allowing the intelligence agencies to continue to engage in torturous acts by passing the Military Commissions Act of 2006 (MCA). This complicity on the part of Congress cannot be explained on partisan grounds as many Democrats voted in favor of the MCA, and upon becoming the majority party in Congress, they have not rescinded it. Indeed, it was a Democratic-controlled Congress that brushed the Bush administration's illegal surveillance under the rug in 2008.4 Moreover, upon taking power in 2006, the Democratic leadership immediately stated that they would not pursue impeachment. Former Reagan administration Department of Justice lawyer Bruce Fein has decried the lack of outrage at the Bush administration's illegalities by suggesting that the nation has become a collection of constitutional “illiterates.”5 Perhaps law is being deposed as Agamben suggests.∂ Both Agamben's and Fein's observations may also indicate a failure of what Michel Foucault would call disciplinary power – the power to constitute subjects capable of exercising power, here the powers of liberal democracy – a failure that Gilles Deleuze has identified with the emergence of societies of control, and a subjective and ontological diversity that Michael Hardt and Antonio Negri call the “multitude.”6 They also indicate practices of textual “interpretation” where interpretative acts extricate legal texts from the narratives that once oriented their purposes and animated these texts for a republican and anti-monarchical polity. Robert Cover argues, however, that law is part of a narrative practice constitutive of subjects and a way of life.7 Insofar as interpretive practices become extricated from the possibility of narrative, then, we may indeed doubt the continuing existence of “law,” as Agamben posits. Psychoanalytic theory also identifies a loss of a structuring meaning in contemporary society and describes this as the decline of symbolic efficiency.8∂ In sum, there appears to be a phenomenon emerging in contemporary society that a variety of different theoretical and political perspectives are struggling to grasp and evaluate. While Agamben welcomes the failures of disciplinary powers as enabling the emergence of whatever being and the “coming community,” it is a cause for concern among those seeking to keep the faith with republicanism, with liberal democracy, or with a Constitution representing these aspirations. In this light, we can be more specific than Agamben about the kind of threat that whatever being poses to the state or to sovereignty.

The law has meaning that can be useful for limiting presidential excess. But, treating it as discursively fluid and inevitably subject to multiple interpretations undercuts its ability to check sovereignty and justifies Bush-era violence

Passavant 10 - Associate Professor of Political Science Habart and William Smith College

(Paul, “Yoo's Law, Sovereignty, and Whatever,” Constellations, 17: 549–571. doi: 10.1111/j.1467-8675.2010.00614.x)

John Yoo is widely known as the author of a number of infamous legal memoranda while he was in the Bush administration's OLC. Yoo interprets the law to allow the president to attack other states at his discretion without congressional authorization; to allow the president to order warrantless surveillance by the National Security Agency (NSA) of Americans; to allow torture by the Central Intelligence Agency (CIA); to allow the military to torture; to allow the president to authorize conduct (torture) that has been criminalized by Congress's legal authority. Or does he?∂ Yoo appears to exemplify what Agamben means by exteriority to law in the way that he plays with law, deactivating it, and detaching it from its purposes. Yoo's relation to law appears to be as pure means – means detached from their ends as he exhibits law as code – as pure communicability – that can be endlessly manipulated or recombined. Agamben writes about whatever being as enjoying a relation to itself as speaking being where language does not indicate this or that true proposition, but exists simply as pure mediality. Likewise, Yoo's relation to law seems to be, at least at first blush, equally a relation that exposes law as pure mediality, not indicating this as our purpose, that as criminalized, or something else (torture?) as that which we are enjoined to prevent faithfully to the extent we are capable until the end of time, but law as pure means, means without end, as meaning, well, whatever.53 This is a form of “law” detached from a practice or discipline.∂ Yoo exhibits this “perfect exteriority” of legalistic being in a number of places, most prominently in his book, Powers of War and Peace.54 In this book, Yoo loosens common constitutional understandings first by emphasizing that the Constitution does not establish a “legalistic” process for making war or treaties, but rather a “flexible” system allowing “interaction,”“[p]ractice,” and “interpretation” to determine outcomes.55 This justifies Yoo's decision to focus “less on judicial precedent.”56 It also allows him to circumnavigate the critiques of expert legal scholars in the field of foreign affairs who argue that certain post-World War II actions by the United States diverge from the constitutional system for foreign affairs established in the Constitution.∂ Yoo appears agnostic regarding particular ends that might be attached to the law (or forbidden by it) if we focus on the rhetorical forms he employs primarily, but not exclusively, in the introduction to his book. There, Yoo utilizes rhetorical forms that render the discursive practice of United States constitutional law more like a somewhat alien or strange object – an object to be manipulated at will or perhaps played with. The constitutional law of treaty termination “appears to have been settled in favor of unilateral presidential power,” though this is “controversial.”57 Against the critiques of legal scholars, the Constitution “can be read to permit existing practice.”58 Regarding the legality of the United States invasion of Iraq in 2003, Yoo states that “the United States could make a self-defense claim that the magnitude of the threat posed by a hostile Hussein regime, one armed with weapons of mass destruction, justified the use of force,”59 and “some scholars concede that if the president is acting pursuant to an inherent constitutional authority, he may violate international law.”60∂ All of the words I have italicized are question begging, if not contradictory. If a legal question is “settled,” then why is it still “controversial”– is this because it only appears settled? Doesn't this beg the very question at issue: what is the best understanding of the Constitution on this point? While the Constitution can be read in a particular way, isn't the real question how it ought to be read? While the United States could make a self-defense claim, wouldn't it be laughably ridiculous and an outright falsehood, especially since the United States already had effective military control of Iraqi airspace and the regime, in fact, did not possess weapons of mass destruction? While some argue that presidents can violate international law in the national interest, one wants to ask Yoo, what, in fact, he is arguing since the framers of the United States Constitution were very concerned that the United States and its presidents should not violate international law or treaties, and thereby drag the nation into war.61∂ Yoo is also well-known for jarring interpretive practices that eviscerate the embeddedness of a legal term in a particular practice in order to inject new meanings into the word, thereby not only changing the meaning of a legal term, but unsettling the domain in which it had been previously situated. For example, Yoo's Powers of War and Peace looks to a dictionary to determine the meaning of “declare,” used in the Constitution to give Congress the power to declare war. The result is that Congress's power to declare war, instead of being the power to decide whether or not to commit the United States to war becomes simply the power to declare a factual situation that the executive branch has produced through its discretionary use of armed force against other states. In so doing, Yoo erases the history of declaring war and the concerns of the framers of the United States Constitution regarding war as an engine for the aggrandizement of executive power.62 By wiping the slate clean in this way, Yoo can empower the President on matters of war and disempower Congress, despite the fact that the Constitution gives Congress the executive power to declare war in order to inhibit the likelihood of war – as well as the lesser powers of issuing letters of marque and reprisal.∂ In subsequent interviews and in congressional testimony, Yoo distinguishes his work from specific policy outcomes or ends following from his legal interpretations. When asked by one interviewer whether he had any “moral qualms” about his work, Yoo responds, “just because the statute says – that doesn't mean you have to do it. You’re right, there is still the moral question – after you’ve answered the legal question – whether you should do it at all.”63 In his congressional testimony, Yoo maintains this distinction between his job to “interpret the laws” and “[d]ecisions about interrogation methods”: “policy choices – adopting particular techniques…were not mine and I did not make them.”64 This is legalistic being where law is pure mediality, disconnected from particular ends.∂ Does Yoo exemplify Agamben's concept of whatever being? If one focuses solely on the legal memoranda he produced as a member of the Bush administration and his subsequent defenses of them in interviews and congressional testimony, then Yoo does exemplify whatever being with his infinitely playful relation to law. If, however, one takes a longer view of his work, then it appears as a highly partisan political vision that is not at all open to “play.” Yoo endorsed monarchical presidential war powers long before George Bush became president.65 Despite proposing a process of interaction, practice, and interpretation to determine outcomes between Congress and the president in his book, when such “interaction” checks the president, he grows frustrated, condemning congressional efforts to “micromanage the executive branch” as leading to “disfunction.”66 Likewise, he facilitates presidential efforts to achieve international agreements most likely to promote the interests of global capital, but he seeks to hamper institutionally presidential efforts to achieve international agreements regarding human rights, the environment, or arms control.67 It may be more accurate, then, to say that Yoo taps into contemporary society's self conscious understanding of the openness of texts to interpretive pluralism, exploiting this knowledge to advance specific political ends. Yoo manifests whatever being in order to capture this tendency for the purpose of ruining popular sovereignty. Yoo plays at whatever being.∂ Whatever being's experience of pure mediality is, according to Agamben, inconsistent with law. Yoo's exposure of this development in contemporary society appears, then, as a kind of lawless legalism.68 Why bother with law at all? Indeed, rather than not bothering with law, numerous legal opinions were sought from the OLC by the Bush administration, and many, many more are hypothesized to exist yet remain undisclosed, particularly those pertaining to the NSA's warrantless surveillance. Law adds something that people like CIA interrogators or the president rely upon in order to be able to act in a manner that others will credit.∂ What is gained by invoking law? Because pure sovereignty is an impossibility, “sovereignty” relies upon laws and legal justifications to become determinate and for its acts to achieve extension. This means that sovereignty is subjected to rules, to law. As Jacques Derrida argues, sovereignty is divided from the moment “it” exists, being subjected to partitions and to participation – to “being shared.”69 Law is expressed through language, in principle a universalizable medium. Moreover, in addressing others in this way, one relies upon prior linguistic conventions, borrowing from them while sharing this linguistic commons with others. The “sovereign” uses language and words with meaning that the “sovereign” itself did not completely legislate or completely invent, but upon which the “sovereign” now relies. Through this law and language, “sovereign” acts, or acts performed in the name of the “people,” seek justification.∂ Looking to law, then, opens up to a particular “normative universe,” a nomos that “we” inhabit. As Robert Cover contends, law cannot exist “apart from the narratives that locate it and give it meaning.” Law is “a world in which we live,” thus constitutive of its subjects. While the “creation of legal meaning cannot take place in silence,” Cover writes, “neither can it take place without the committed action that distinguishes law from literature.”70 Whatever being's experience of pure mediality, of language that communicates only itself rather than substantive propositions or particular commitments, unravels the narratives sustaining our law.∂ Law acquires meaning through narratives identifying or inspiring commitments. Law, which crosses state and non-state institutions, is a discourse shared by state actors and those in society. In this way, law keeps our commitments. It is where we re-call our commitments. And it is where our commitments are vulnerable to ruin because law is a language we share with others. If law is to keep our commitments, our commitments on behalf of popular sovereignty against monarchical tyranny, for instance, then we cannot be at ease with whatever. Therefore, Yoo's playful exhibition of pure mediality can be understood as an effort to weaken the hold of the narratives against monarchical tyranny in order to open the Constitution to interpretive play – play that has as its ends unchecked presidentialism and the dismemberment of popular sovereignty.

Comprehensive analysis proves legal checks can work

Martin 11, Craig Martin, Visiting Assistant Professor, University of Baltimore School of Law, Winter, 2011¶ Brooklyn Law Review¶ 76 Brooklyn L. Rev. 611, ARTICLE: Taking War Seriously: A Model for Constitutional Constraints on the Use of Force in Compliance with In-ternational Law, Lexis

In beginning to think about how to improve the legal constraints on the resort to war, it is essential to consider the causes of international armed conflict. n10 The question of what causes war is the subject of a massive amount of re-search and debate, stretching back literally thousands of years. n11 The focus of the various theories on the causes of war range from the individual decision makers, through small-group dynamics, the structure of the state itself, all the way to the structure and operation of the international system of states. n12 Thucydides, whose analysis of the Peloponnesian War is one of the earliest studies of the subject known to us, set the stage with a complex explanation for the causes of that war that included the individual attributes of decision makers, the nature and structure of the leading city-states, and the nature of the interstate system itself. n13 Kenneth Waltz continues this classification by defining the three levels as "Images": the individual or human level ("Image I"), the level of the state structure or organization ("Image II"), and the level of the international system ("Image III"). n14 And despite the differing theories, disagreements, and areas of emphasis, there is a widely shared acceptance that all three Images play a role in explaining the causes of war, albeit to varying degrees [*617] depending on one's theoretical perspective. n15 While it is not necessary for us to examine the various theories in detail, it will be helpful to get a flavor for some of the more important ideas as they relate to each of the three Images, as I will refer back to these ideas to support the argument for the proposed Model.∂ A. Image I--The Level of the Individual∂ There are a wide variety of theories, and indeed a number of different sublevels within the Image I--the individual level--perspective on the causes of war. Some of these focus on aspects such as human nature itself and the inherent aggression of ~~man~~. n16 But the theories that relate to both the psychology of decision makers, and a number of systemic problems in small-group decision making are of greatest significance for the argument being advanced here. Beginning with individual psychology, one set of theories focus on the personality traits that are common among those who tend to reach the highest offices of government as factors that contribute to unsound judgments regarding the use of armed force. Empirical studies suggest that a number of traits that tend to be overrepresented in national leaders--such as au-thoritarian and domineering tendencies, introversion (which is perhaps counter-intuitive, but Hitler and Nixon are both prime examples of this trait), narcissism, and high-risk tolerance--also tend to correlate with much higher levels of con-frontation and the use of force to resolve conflicts. n17∂ Psychological theories also focus on problems of misperception. There is powerful evidence that people are prone to systematic patterns of misperception, and that such misperception in government leaders contributes significantly to irrational decisions. n18 In particular, decision makers frequently form strong hypotheses regarding the intentions [*618] and capabilities of potential adversaries, and there is a strong tendency to then dismiss or discount information that is inconsistent with the hypothesis, and to interpret ambiguous information in a manner that is consistent with and reinforces the hypothesis. n19 Such misperception often constitutes a significant factor in the path to war. n20∂ Another set of theories that relate to the Image I causes of war focus not on the individual alone, but on how deci-sions are made within groups and organizations. Contrary to the expectation that government agencies generally operate in accordance with rational choice theory, studies suggest that group decision making is often characterized by dynamics that can lead to irrational and suboptimal decisions. One such characteristic is excessive "incrementalism" and "satisfycing"--the tendency to make small incremental policy shifts, coupled with the sequential analysis of options and adoption of the first acceptable alternative, a process captured in the aphorism "the good is the enemy of the best." n21 A second theory suggests that the dynamic of competing bureaucratic and departmental interests--interests which are often inconsistent with the larger national interest, but which nonetheless command greater loyalty and mobilize greater effort among department or division members--subvert the decision-making process. n22 Moreover, each department will itself approach the decision making within the constraints of its own perspectives and mindsets, standard operating procedures, and capabilities. This is the famous "where you stand is where you sit" explanation of internal government politics, n23 often referred to as the [*619] "bureaucratic politics model." n24 For example, the senior representatives of the U.S. Air Force, with obviously vested interests, strongly argued in favor of the continued strategic bombing of North Vietnam in 1967, even though the Secretary of Defense and others in the Nixon administration had determined that it was at best pointless and at worst counterproductive. n25∂ Finally, there is the phenomenon known as "groupthink." n26 This theory suggests that some decision-making groups--particularly those characterized by a strong leader, considerable internal cohesion, internal loyalty, overconfi-dence, and a shared world view or value system--suffer from a deterioration in their capacity to engage in critical analysis during the decision-making process. n27 Decision-making groups that suffer from groupthink are particularly vulnerable to the kind of systemic misperception discussed above, but they suffer from other weaknesses as well, all stemming from a failure to challenge received wisdom, consider alternate perspectives, or bring to bear exogenous criteria or modalities in assessing policy options. n28∂ These theories do not, of course, explain all of the problems in decision making in all situations. Groupthink and the bureaucratic politics model generally do not operate at the same time in the same groups. But the studies of each of these phenomena suggest that these systemic patterns can be a significant factor in the less-than-rational and suboptimal decision making about the use of armed force. And these theories together show the importance of introducing exogenous criteria for assessing the merit of competing policy options, and the kinds of checks and balances that might lessen the probability that these tendencies could affect the decision to go to war. [*620] ∂ B. Image II--The Level of the State∂ The causes of war also operate at the level of the state itself. Again, there is an extensive range of theoretical ex-planations for the causes of war that focus on factors at the state level, but those that are central to Image II relate to the actual structure or form of the government of the state. n29 The essential idea is that some forms of government are inherently less prone to wage war than others. This idea has been central to liberal theories of the state and international relations since the beginning of the eighteenth century, with the argument that liberal democratic states are less inclined to initiate wars than autocratic or other nondemocratic states. These arguments were founded upon a number of strands of liberal political theory, including the nature of individual rights within democracies and the manner in which respect for such rights would influence how the state would behave within the international society. n30 They also drew upon liberal ideas about the influence of capitalist economies, arguing that laissez-faire capitalist systems would operate to reduce the incentives for war in liberal democratic states. n31 But perhaps the most important argument among these liberal claims, is that the very structure of government, both in terms of its leaders being representative of and directly accountable to an electorate, and the separation of political power between the executive and a more broadly representative legislature, would operate to reduce the likelihood that such governments would embark on military adventures. n32∂ Rousseau and Madison both wrote about the ramifications of the democratic structure of the state on the propensity for war. n33 But it was Immanuel Kant who developed the argument most fully in the eighteenth century with his [*621] short work Perpetual Peace: A Philosophical Sketch. n34 Writing at a time when there were less than a handful of fledgling democratic "republics" in the world, n35 Kant argued that a perpetual peace would result from the spread of the republican form of government among the nations of the world and the development of a form of pacific federation among these free states. n36 His argument thus straddled the second and third images, and I will return to discuss his overall theory more fully below when we turn to consider Image III. But one of his arguments for why republics would be inherently less likely to wage war is still very much at the heart of current liberal theories relating to Image II. His point was that, in the kind of republic he envisioned, the consent of citizens would be required for decisions to go to war. Those who would "call[] down on themselves all the miseries of war," not only fighting and dying in the conflict but also paying for it and suffering the resulting debt, would be much less likely to agree to such an adventure than the heads of state in other kinds of political systems such as monarchies, who can "decide on war, without any significant reason." n37∂ As we will see, Kant himself did not argue that the development of democratic structures within any given state would be sufficient to prevent it from going to war, and his theory of perpetual peace also rested on the requirement that the republican form of government be also spread throughout the international system. Indeed, one of the problems with liberal theories that rely upon governmental structure as an explanation for the cause of war is that the extensive empirical research and analysis on the subject suggest that liberal democracies are almost as prone to engaging in war as nondemocratic states, at least as against nondemocratic countries. n38 Some have tried to argue that liberal democracies nonetheless do not initiate wars to the same degree, and thus [*622] are inherently less aggressive than other forms of government, but even that claim is very difficult to sustain from the perspective of traditional international law conceptions of aggression and self-defense. n39∂ What has emerged from this line of research, however, is the widely accepted proposition that liberal democracies do not commence wars against other liberal democracies. The so-called "democratic peace" encompasses both this empirical fact and the principle said to explain it. n40 While there remains some residual debate over the validity of the principle, n41 persuasive evidence suggests that, with the possible exception of two instances of armed conflict between what might be considered democratic states, there have been no wars between liberal democracies during the period between 1816 and 1965. n42 The assertion has been made, and often cited, that the democratic peace is close to being an empirical law in international relations. n43∂ There is less agreement over the best explanation for the democratic peace. There are two main theoretical posi-tions: (1) normative and cultural explanations, and (2) institutional and structural constraints. n44 The normative-cultural explanations argue that the shared norms of democracies, and particularly the shared adherence to the rule of law and commitment to peaceful dispute resolution internally, inform and influence the approach of democratic governments to [*623] resolving disputes that may arise as between democracies. Moreover, there is a shared respect for the rights of other people who live in a similar system of self-government. These shared beliefs, norms and expectations tip the cost-benefit analysis toward peaceful resolution of disputes when they arise as among democracies. n45∂ The structural-institutional advocates argue that the elements of the liberal democratic legal and political system operate to constrain the government from commencing armed conflicts. This is entirely in line with the insights of earli-er writers such as Madison, Kant, and Cobden, regarding the lower likelihood of war when representatives of those who will pay and die for the war are deciding, since it is more politically risky for democratic leaders to gamble the blood and treasure of the nation in war unless it is clearly viewed by the public as being necessary. n46 The arguments are also based in part on the broader idea that structural checks and balances typical of democratic systems, and the operation of certain other institutional features of deliberative democracy, will reduce the incidence of war. n47 We will return to some of these arguments in more detail below.

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