The issue is illuminated by an infamous episode in America’s constitutional history, the nullification crisis of 1832-1833. South Carolina senator John C. Calhoun argued that since a state was bound to the Union by a constitutional compact, it retained the right to judge the constitutionality of laws enacted by the federal government. If a law was thought to be unconstitutional, the state could refuse to adhere to, or nullify, it. However, Massachusetts senator Daniel Webster’s famous rebuttal eviscerated Calhoun’s claim that a state could somehow be in the government and outside the government at the same time, that it could join in passing laws that others were to obey, and yet reject the authority of those laws as applied to itself. Unfortunately, this is exactly what the Ukrainian revolutionaries did. They defiled the constitution, then invoked its authority for their own purposes. On the principle set forth by Webster, they had surrendered their right to do that. They had annulled the constitution by their previous act. A crowd of 500,000 protestors changed the government for a country of 45 million people.
The revolutionary seizure of power in Kyiv threw the country into what political philosophers have called a state of nature, or a condition in which there is no constituted authority. Under these circumstances, if western Ukrainians had the right to take up arms, as they effectively did, did it not follow that eastern Ukrainians also had the same right? That would be the obvious conclusion if each of the parties were considered to have equal rights. Yet, this is not the conclusion of Western observers, nor of the Ukrainian nationalists themselves, who proceeded on the assumption that the Russian-speaking population in the east was not adorned with the same rights.
In the brisk summation of the American commentariat, whose fidelity to the fine points of international law is very selective, the absence of any legal standing for Russia’s actions in 2014 is taken to be so obvious as to be beneath contempt. But the legal issues are frequently confused in the presentation. International law does not forbid declarations of independence. In fact, questions related to territorial integrity and external intervention, in this case, are entirely subordinate to the question of whether the inhabitants of Crimea and the Donbas statelets had a right to declare their independence. If they didn’t, the Russian position collapses, but if they did, the aid that Russia gave to them was not illegal, or no more so than the aid the United States provided during the Euromaidan Revolution. Disaffected Russian speakers in the east had, in those circumstances, as much of a right to solicit external aid as the revolutionary government in Kyiv.
The issue of international law, therefore, hinges on whether the eastern Ukrainians had the right, in the aftermath of the revolution, to declare their independence. I think they did, for the reasons indicated, but my opinion is confessedly irrelevant. That Putin thought they did is the commanding feature of today’s situation. God knows how far he intends to push it. Unless appearances deceive, a legitimate case for Russian intervention in 2014 has transmogrified into a manifestly illegal case of irredentism in 2022.
What Is It Good For?
I have studied war throughout my adult life and, as a result, learned to hate it. My detestation, however, mingles with a belief in the larger disutility of military force. How many wars were launched with a full appreciation of the consequences? Invariably, wars lead to outcomes and painful dilemmas unseen at the outset. That may be said of America’s wars in Afghanistan, Iraq, Libya, Syria but it is largely par for the course. As to which is primary—the emotional belief in the wrongness and injustice of offensive war, or the rational observation that it usually has embedded assumptions that turn out to be detached from reality—I can’t really say. Call it a dialogue between the heart and the head.
At this point in Putin’s war, through the inevitable fog, I don’t know what to think, but I feel it is a big mistake on his part as well as a crime. He indicts Ukraine’s “neo-Nazis” for their promotion of anti-Russia policies, but “denazification” as a war objective seems to promise the same folly in reverse. He promises that there will not be an occupation but has outlined objectives which logically require one. He promises to take great care in the use of high explosives to prevent harm to civilians in a warzone in which civilians are inescapably present. We’ve heard that line before.
This present conjuncture reminds me of how I felt after 9/11. I wept for the people burned and crushed in the World Trade Center, but I also wept for the consequences that would follow. Osama bin Laden had given a decisive fillip to the worldview of Dick Cheney and the neoconservatives. They then had carte blanche to do what they wanted. What follows from today’s Russian invasion is the total estrangement of Russia from the West, the construction of a new “Central Front” along a much longer line from the Barents Sea to the Black Sea, the abject collapse of the arms control and disarmament treaties that made Europe safer than it had ever been before, grave peril to any possibility of global cooperation to deal with threats like climate change and pandemics, and profound economic dislocation against the backdrop of extremely irresponsible U.S. fiscal and monetary policies.
With everyone focused on Ukraine for the last three months, it seems almost to have escaped the attention of America’s commentariat that the United States considers China its primary adversary. In 2020, the sudden emergence of this bipartisan consensus recalled 1946, when Washington came to the widespread realization that Franklin Roosevelt’s promise of postwar cooperation with Josef Stalin was an illusion. I suppose that one could liken today’s sentiment to 1949-50, when successive events—the “loss of China,” the Soviet detonation of an atomic device, North Korea’s invasion of its southern neighbor—produced the rousing U.S. response that was embedded in Paul Nitze’s NSC-68, America’s blueprint for the twilight struggle then fully underway. But there are differences.
Today, the old Sino-Russian bloc has been re-consolidated, and on a much firmer foundation. There is no wedge to drive between them, no possible deal to divide them from each other.
Back then, America had immense self-confidence, the sublime faith not only that its institutions and its ideals were fundamentally right but also that its power was invincible. Neither sentiment prevails today.
Russia’s war may temporarily produce a partial reprieve from our tribal wars at home, pitting the woke against the non-woke, the young against the old, the blue against the red, but the internal divisions are far too deep to expect that an external crisis will make them go away.
American military power is not what it once was. We have, in effect, a three-and-a-half-war foreign policy, paired with a one-and-a-half-war defense budget and military strategy. Logically, the United States needs to choose among basic priorities but that would require a reconsideration of its basic objectives, and these are wired too closely into the Washington power structure for that to happen. Ye Olde Lippmann Gap has returned with a vengeance.
In 1950, the solution to what was felt to be a rush of oncoming disasters was to fortify American military strength; after North Korea’s invasion of South Korea, U.S. military spending tripled. Whereas those decisions in the early 1950s were taken under the imprint of felt necessity, the expansion of America’s global commitments after the collapse of the Soviet Union was taken in the easy confidence that the United States would remain supreme in all the dimensions of power. That is no longer our world, but the global commitments and policies birthed in that era remain with us.
We need to escape this thicket because the U.S. global position and the purposes which it attends to have become a serious threat to American security and world order. Unfortunately, the path to escape it appears essentially foreclosed.
David C. Hendrickson is President of the John Quincy Adams Society and the author of Republic in Peril: American Empire and the Liberal Tradition (Oxford, 2018). His website is davidhendrickson.org.