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book: The Constitution in Wartime
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The Constitution in Wartime

Beyond Alarmism and Complacency
  • Edited by: , and
  • With contributions by: , , and
Language: English
Published/Copyright: 2005

About this book

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

Author / Editor information

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.

Reviews

“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

"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

Topics

  • Publicly Available

    Frontmatter

    i
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  • Publicly Available

    Contents

    vii
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    Introduction

    1
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  • Part I
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    War and the American Constitutional Order

    11
    Mark Brandon
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    Emergencies and the Idea of Constitutionalism

    39
    Mark Tushnet
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    Accommodating Emergencies

    55
    Eric Posner and Adrian Vermeule
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  • Part II
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    Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime

    95
    Mark Graber
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    Defending Korematsu? Reflections on Civil Liberties in Wartime

    124
    Mark Tushnet
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  • Part III
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    The War Powers outside the Courts

    143
    William Treanor
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    Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime

    161
    Samuel Issacharoff and Richard Pildes
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    Realizing Constitutional and International Norms in the Wake of September 11

    198
    Peter Spiro
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  • Part IV
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    The War on Terrorism and the End of Human Rights

    219
    David Luban
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    War, Crisis, and the Constitution

    232
    Sotirios Barber and James Fleming
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    Afterword: The Supreme Court’s 2004 Decisions

    249
    Mark Tushnet
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    About the Contributors

    255
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    Index

    257
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Publishing information
Pages and Images/Illustrations in book
eBook published on:
December 7, 2020
eBook ISBN:
9780822386902
Pages and Images/Illustrations in book
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https://doi.org/10.1515/9780822386902
eBook ISBN: 9780822386902
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