The Constitution in Wartime: Beyond Alarmism and Complacency

The Constitution in Wartime: Beyond Alarmism and Complacency

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Duke University Press Books
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The Constitution in Wartime: Beyond Alarmism and Complacency

Most recent discussion of the United States Constitution and war—both the war on terrorism and the war in Iraq—has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely reasonable accommodations to the new realities of national security. Whatever their contributions to the public discussion and policy-making processes, these voices contribute little to an understanding of the real constitutional issues raised by war. Providing the historical and legal context needed to assess competing claims, The Constitution in Wartime identifies and explains the complexities of the important constitutional issues brought to the fore by wartime actions and policies. Twelve prominent legal scholars and political scientists combine broad overviews of U.S. history and contemporary policy with detailed yet accessible analyses of legal issues of pressing concern today.

Some of the essays are broad in scope, reflecting on national character, patriotism, and political theory; exploring whether war and republican government are compatible; and considering in what sense we can be said to be in wartime circumstances today. Others are more specific, examining the roles of Congress, the presidency, the courts, and the international legal community. Throughout the collection, balanced, unbiased analysis leads to some surprising conclusions, one of which is that wartime conditions have sometimes increased, rather than curtailed, civil rights and civil liberties. For instance, during the cold war, government officials regarded measures aimed at expanding African Americans’ freedom at home as crucial to improving America’s image abroad.

Contributors. Sotirios Barber, Mark Brandon, James E. Fleming, Mark Graber, Samuel Issacharoff, David Luban, Richard H. Pildes, Eric Posner, Peter Spiro, William Michael Treanor, Mark Tushnet, Adrian Vermeule

Product Details

ISBN-13: 9780822334569
Publisher: Duke University Press Books
Publication date: 01/26/2005
Series: Constitutional Conflicts
Pages: 272
Product dimensions: 6.74(w) x 8.70(h) x 0.88(d)

Table of Contents

Introduction 1

Part I

War and the American Constitutional Order / Mark E. Brandon 11

Emergencies and the Idea of Constitutionalism / Mark Tushnet 39

Accomodating Emergencies / Eric A. Posner and Adrian Vermeule 55

Part II

Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime / Mark A. Graber 95

Defending Korematsu? Reflections on Civil Liberties in Wartime / Mark Tushnet 124

Part III

The War Powers outside the Courts / William Michael Treanor 143

Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime / Samuel Issacharoff and Richard H. Pildes 161

Realizing Constitutional and International Norms in the Wake of September 11 / Peter J. Spiro 198

Part IV

The War of Terrorism and the End of Human Rights / David Luban 219

War, Crisis and the Constitution / Sotirios A. Barber and James E. Fleming 232

Afterword: The Supreme Court's 2004 Decisions / Mark Tushnet 249

About the Contributors 255

Index 257

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