The Constitution in Wartime

Beyond Alarmism and Complacency

The Constitution in Wartime

Constitutional Conflicts

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Book Pages: 272 Illustrations: Published: January 2005

History > U.S. History, Law > Legal History, Politics > Political Science

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


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

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

"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

"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

"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

"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

“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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Author/Editor Bios Back to Top

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. His many books include A Court Divided: The Rehnquist Court and the Future of Constitutional Law, The New Constitutional Order, Slave Law in the American South: State v. Mann in History and Literature, and Taking the Constitution Away from the Courts.

Table of Contents Back to Top
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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Paper ISBN: 978-0-8223-3468-2 / Cloth ISBN: 978-0-8223-3456-9
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