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

Mark E. Brandon

Eric A. Posner

Adrian Vermeule

Mark A. Graber

Mark Tushnet

William Michael Treanor

Samuel Issacharoff

Richard H. Pildes

Peter Spiro

David Luban

Sotirios A. Barber

James E. Fleming

"For the most part stimulating, and at the same time disquieting, [these essays] offer a number of intriguing insights that should lead one to be cautious in drawing generalizations about American constitutionalism in a time of armed conflict. . . . A brief review such as this can not do justice to the ideas and issues considered by all the authors represented in Tushnet's volume. They will engender disagreement from readers, as indeed they do even among the respective authors. This book deserves careful attention."—Jonathan Lurie, Journal of American History

"This is an extraordinarily well done and useful collection of essays on a subject of great current relevance. . . . Highly recommended. General readers; upper-division undergraduates and above."—B. Grossman, Choice

"Mark Tushnet's groundbreaking collection of essays seeks to push discourse beyond this public shouting match. . . . Each essay is a sober reflection upon its chosen topic, demonstrating a mastery of existing constitutional studies and a deep sense of history that is lacking from 'first generation' scholarship in this field. Yielding surprising conclusions at more than one turn. Professor Tushnet and his contributors succeed in their goal of pushing public discourse away from the shrill rhetoric at the poles of the debate and toward real insights that will shape the formulation of public policy and the post-9/11 constitutional order."—Harvard Law Review

"A balanced study that strives for historical accuracy; for academic and public libraries."—Library Journal

"Tushnet has assembled a highly regarded group of academics to produce a well-reasoned, well-written, and well-balanced piece of scholarship. The cogent and helpful introduction lays out clearly the purpose and direction of the book--a blessing to the reader (and to the reviewer). What follows is what is promised--honest and detailed yet accessible analyses of legal and constitutional issues of pressing concern today. This is a good read, a book from which the upper-level undergraduate, the teacher, and the informed citizen can benefit. And, no doubt, if more people would read it, our public debate on this topic would improve appreciably."—Richard A. Glenn, Law and Politics Book Review

“This anthology presents a compelling cross-section of the second-generation discussion about constitutional law and war powers after 9/11. . . .”—Thomas Cmar , Constellations

"For the most part stimulating, and at the same time disquieting, [these essays] offer a number of intriguing insights that should lead one to be cautious in drawing generalizations about American constitutionalism in a time of armed conflict. . . . A brief review such as this can not do justice to the ideas and issues considered by all the authors represented in Tushnet's volume. They will engender disagreement from readers, as indeed they do even among the respective authors. This book deserves careful attention."—Jonathan Lurie, Journal of American History

"This is an extraordinarily well done and useful collection of essays on a subject of great current relevance. . . . Highly recommended. General readers; upper-division undergraduates and above."—B. Grossman, Choice

"Mark Tushnet's groundbreaking collection of essays seeks to push discourse beyond this public shouting match. . . . Each essay is a sober reflection upon its chosen topic, demonstrating a mastery of existing constitutional studies and a deep sense of history that is lacking from 'first generation' scholarship in this field. Yielding surprising conclusions at more than one turn. Professor Tushnet and his contributors succeed in their goal of pushing public discourse away from the shrill rhetoric at the poles of the debate and toward real insights that will shape the formulation of public policy and the post-9/11 constitutional order."—Harvard Law Review

"A balanced study that strives for historical accuracy; for academic and public libraries."—Library Journal

"Tushnet has assembled a highly regarded group of academics to produce a well-reasoned, well-written, and well-balanced piece of scholarship. The cogent and helpful introduction lays out clearly the purpose and direction of the book--a blessing to the reader (and to the reviewer). What follows is what is promised--honest and detailed yet accessible analyses of legal and constitutional issues of pressing concern today. This is a good read, a book from which the upper-level undergraduate, the teacher, and the informed citizen can benefit. And, no doubt, if more people would read it, our public debate on this topic would improve appreciably."—Richard A. Glenn, Law and Politics Book Review

“This anthology presents a compelling cross-section of the second-generation discussion about constitutional law and war powers after 9/11. . . .”—Thomas Cmar , Constellations

“The collection of essays in The Constitution in Wartime will enhance the quality and depth of the debate that surrounds many of the measures taken by our government in the war on terrorism. Mark Tushnet has written a fine introduction to a superb collection of essays by a top-notch group of scholars.”—William C. Banks, Laura J. and L. Douglas Meredith Professor, Syracuse University College of Law

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