Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
My friend Randy Barnett has an interesting post discussing his views on libertarian policy and the Iraq War. He also discusses my recent series of posts detailing my change of position on the War. I strongly recommend Randy’s post.
I agree with virtually all of Randy’s analysis. In particular, I agree with his skepticism “that the ex post results means that the invasion of Iraq was a mistake ex ante.” The mere fact that the invasion of Iraq has in many ways turned out poorly does not necessarily mean it was a mistake. I recognize that it is possible to interpret my posts as drawing that problematic inference, but that was not my intention. Whether it makes sense to engage in an action ex ante should not be decided simply on the results, but on what made sense at the time. For example, it might make sense to undergo a medical procedure, even though we know that a certain percentage of the time it might lead to bad results. If the medical procedure happens to lead to a bad outcome, there is a sense in which it was a mistake to undergo the procedure. But the right way to analyze the decision is to ask whether we would make the same choice again, knowing what we did at the time. If we would attempt the medical procedure again, even though there is a chance of a bad result, then undergoing the procedure was the right decision. The same holds for public policy decisions.
In my view, the results in Iraq are sadly more than simply what happened to happen in this case. They are, I believe, the results of our political environment – of government incompetence, aided and abetted by a political system in which the people are often unwilling to see a policy through to the end. The US, alas, has a history of winning the war, but then losing the peace in various ways – whether it be World War I, World War II, or Viet Nam.
I do not, however, intend my post as criticizing all military interventions. That would be too broad a reaction. When the US provides military aid to another country or when we take action that is intended to achieve a military result, those interventions may be desirable and need to be evaluated on their own. My point is that when an intervention requires a high level of competence and especially when it requires a long and sustained course of action – as in the case of nation building – the US is unlikely to be up to the task.