Some consequences of the strategic innovations that won the Long War require a stronger and more centralized government than before. For example, nuclear weapons strategy, clandestine intelligence collection, and covert action sometimes require a level of secrecy that is incompatible with open government or even the relation been parliamentary oversight and the citizenry that links government to the people. Unless the president has the authority to launch nuclear weapons, the system of assured annihilation is changed into a very different scheme of risk taking that might well tempt an adversary into making threats—or executing them—in the hope of paralyzing the United States. It is simply absurd to think that a system of nuclear deterrence could be maintained if the president had to go to Congress for a declaration of war before launching a retaliatory or pre-emptive strike. But how can the difficult problem of nuclear command and control be reconciled with the new constitutional demands of the market-state for transparency and citizen participation? The answer may lie in changing our expectations about what legitimate delegation consists in and accepting very broad predelegations of authority, as it were, that can be withdrawn by the normal statutory process but that otherwise remain in place. This changes the burden between the branches of government, admittedly; after such a predelegation, the Congress would have to muster a two-thirds majority to remove power from the president by overriding his veto of legislation repealing the delegation, should he choose to resist. We are already moving from a system in which the State is the principal actor on behalf of the nation to one in which the State is the facilitator of practical affairs. The market-state seeks a role as enabler and umpire, and shuns the role of provider and judge. Broad legislative delegations—such as “fast track” trade authorizations and the consolidated budget—are above all simply practical and efficient. Increasingly, the justification for state action will turn on its relation to minimizing transaction costs. Redistributive and meliorist policies will come under intense attack on these grounds.
This decoupling of state apparat and national community is consistent with developments in war itself. If war becomes again, as it once was, an affair of states rather than of peoples—if it becomes, in Michael Howard's words, “denationalized”—this may not be such a bad thing. It is true that this move tends to isolate the executive from the body politic, making it “a severed head conducting its intercourse with other severed heads according to its own laws.”31 There will be little sense of the mass participation that characterized the Long War and that united nationalism and militarism in the creation of the nation-state. But if this is no longer a military necessity, should our constitutional forms continue to demand it? Can participation be supplanted by mere observation, coupled with Internet opinion polling, rather than voting and serving? What seems likeliest is that expectations will change, ultimately corresponding to the change in strategic requirements that no longer require vast armies of conscripts—though again I note that the precise way in which this accommodation will play out is not predestined.
Other responsibilities of the market-state may also lead to a similar delegation of power, e.g., the monitoring of epidemics and diseases, of inter-national migration, of terrorism, of espionage, and of threats to the environment. All of these spheres of governmental activity are ill-suited to effective oversight by the market. Some depend on maintaining the secrecy of crucial information, while others require a single governmental voice in a dialogue with other governments. In both cases, transparency and public knowledge are sacrificed.
The successful discharge of the responsibilities just discussed is only possible in a constitutional system with a powerful, centralized, and, above all, trusted executive. Innovations of the 1970s, like the independent counsel, or detractions from the unitary executive generally, as well as the contempt with which claims of executive privilege are customarily greeted, are hardly compatible with the kind of decisive executive demanded by the market-state. It's not that the president must be above that law: that would be utterly and obviously contradictory of the principles of the American constitution. Nor should the presidency be inferior to the judiciary, the Congress, or the press, the executive's principal competitors. It's rather that our expectations about what the law should be have been shaped by the endgame of the nation-state and its close identification of the State with the nation. When these expectations change, the glamour and prestige of the presidency will suffer. As an institution, it will find itself in competition with the media to a greater degree even than with its traditional competitors in the other two branches. It will be important to ensure that the president's ability to govern, in the limited areas of responsibility given to the market-state, be enhanced. Fragmenting the constitutionally unitary executive branch can scarcely be a positive step in the direction of enhanced presidential authority.
Some areas of responsibility are amenable neither to complete determi-nation by market processes nor to handling by the federal government. These might devolve to the states and localities with the expectation that they will be delegated to associations, NGOs, nonprofit foundations, charities, and the like that operate with the greatest legitimacy at the local level because participation seems more available to local citizens.
The important difference between the devolving federal state and the local state is that the latter can experiment in the market. In some local states genetic research, abortion, and sexual orientation will be largely unregulated; in others, regulations governing these activities will be enforced by market actors licensed by the local state; and in some states the regulations will be enforced by police sanction. What is all too clear, however, is that a federal police presence is far too unwieldy, too nonlocal to handle the single issue most American citizens fault their government over, the issue of crime. If there was any doubt about this, it was settled in the public's mind by the U.S. government's handling of the Branch Davidian case in Waco, Texas, where eighty-one persons, thirteen of them children, died as a consequence of the government's efforts to serve a warrant.32 Nor has the continuing futility of the government's “war” on drug use redeemed its prestige.
The devolution and the licensing of private firms to enforce regulations are troubling in a society that has steadily moved to make its criminal laws nationally uniform and to restrict the legitimate use of force to trained men and women acting under strict official discipline. In this, however, as in much else the United States can more easily adapt to such devolution than other states. Its system of federalism provides a ready structure for devolving power out of Washington; virtually all law enforcement is already a matter of state jurisdiction. Moreover, the Second Amendment to the U.S. Constitution—aptly termed by one distinguished constitutional scholar “the embarrassing second amendment”33 for the discomfort it causes persons who are accustomed to supporting both gun control and civil liberties—reflects a fundamental, residual locus of armed force in the people themselves.34 If, as Martin van Creveld speculates, “the day-to-day burden of defending society from low-intensity conflict will be transferred to the booming security business,”35 this mixture of devolution and privatization will become commonplace in the market-state. This is a harrowing prospect, but one with which we may have to learn to cope.
We will also have to cope with the increasing willingness of corporations to sell sensitive military technology to potentially dangerous foreign states. American, French, German, and British companies have all done so and, despite the fact that some of them have been exposed and their officers even indicted, these practices are likely to continue. Indeed many companies vigorously lobby their governments to permit these sales, lifting restrictions against technology transfers as a mere concomitant to deregulation and the drive for market share. Nor can the international banking system's critical support for the operations of denationalized terror networks be ignored. The nation-state was poorly situated to cope with this informal, virtual treasury as receipts and disbursements leapfrogged national regulation. It remains to be seen whether the market-state, with its sensitivity to any costs imposed on transactions by regulation, will do any better.