The Constitution In Wartime

by Tushnet, Mark V.

• ISBN13: 9780822334682
• ISBN10: 0822334682
• Format: Paperback
• Copyright: 2005-03-01
• Publisher: Duke Univ Pr

Summary

Most recent discussion of the United States Constitution and war-both the war on terrorism and the war with Iraq-has been dominated by the alarmism of those who see portents of gross restrictions on American civil liberties in many current policies and the complacency of those who see restrictions on civil liberties 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 the 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 improving America's image abroad by expanding African Americans' freedom at home as crucial to U.S. struggles against the Soviet Union.ContributorsSotirios BarberMark BrandonJames E. FlemingMark GraberSamuel IssacharoffDavid LubanRichard H. PildesEric PosnerPeter SpiroWilliam Michael TreanorMark TushnetAdrian Vermeule

Table of Contents

Introduction	p. 1
War and the American Constitutional Order	p. 11
Emergencies and the Idea of Constitutionalism	p. 39
Accommodating Emergencies	p. 55
Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime	p. 95
Defending Korematsu? Reflections on Civil Liberties in Wartime	p. 124
The War Powers outside the Courts	p. 143
Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime	p. 161
Realizing Constitutional and International Norms in the Wake of September 11	p. 198
The War on Terrorism and the End of Human Rights	p. 219
War, Crisis, and the Constitution	p. 232
Afterword: The Supreme Court's 2004 Decisions	p. 249
About the Contributors	p. 255
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