Responses to the Ten Questions

This essay responds to a question posed by the William Mitchell Law Review for its annual national security issue: Has Obama Improved Bush\u27s National Security Policies? I maintain that Obama Administration practices have been marked by striking continuities with those of the previous Administration. I then attempt to explain these continuities by discussing how American policymakers across the political spectrum share basic assumptions about the concept of national security and the need for an aggressive and interventionist foreign policy

Constitutionalism and the Foundations of the Security State

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This Article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, critically functioning to reinforce and legitimize government power rather than primarily to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. At the same time, however, public discussion about protecting the Constitution—and a distinctively American way of life—has also served as a key justification for strengthening the government’s security infrastructure over the long run. I argue that in the late nineteenth and early twentieth centuries, there existed significant popular skepticism of the basic legitimacy of the Constitution. Against the backdrop of World War I and the Russian Revolution, a combination of corporate, legal, and military elites initiated a concerted campaign to establish constitutional support as the paramount prerequisite of loyal citizenship. Crucially, such elites viewed the entrenchment of constitutional commitment as a fundamental national security imperative. They called for a dramatic and permanent extension of the reach of the federal government’s coercive apparatus. In this process, defenders of the Constitution endorsed many of the practices we most associate with extremism and wartime xenophobia: ideological uniformity, appeals to American exceptionalism and cultural particularity, militarism, and political repression. The World War I origins of today’s constitutional climate do not simply reveal a troubling but distant past. Rather, the foundations developed nearly a century ago continue to intertwine constitutional loyalty with the prerogatives of the national security state in ways that often go unnoticed, making it difficult to separate the liberal and illiberal dimensions of American constitutional culture

Who Decides on Security?

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of security has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas about popular competence. Paying special attention to the decisive role of actors such as Supreme Court Justice Felix Frankfurter and Pendleton Herring, co-author of 1947\u27s National Security Act, this Article details how emerging judgments about the limits of popular knowledge and mass deliberation fundamentally altered the basic structure of security practices. Countering the pervasive wisdom at the founding and throughout the nineteenth century, this contemporary shift has recast war and external threat as matters too complex and specialized for ordinary Americans to comprehend. Today, the dominant conceptual approach to security presumes that insulated decision-makers in the executive branch (armed with the military\u27s professional expertise) are best equipped to make sense of complicated and often conflicting information about safety and self-defense. The result is that the other branches—let alone the public writ large—face a profound legitimacy deficit whenever they call for transparency or seek to challenge coercive security programs. Not surprisingly, the tendency of legalistic reform efforts has been to place greater decision-making power in the other branches and then to watch those branches delegate such power back to the executive

What Future Democracy?

The threat posed by Aids to the development of democracy in Africa plays no part in current discussions of the impact of the disease

Who Decides on Security?

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of security has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas about popular competence. Paying special attention to the decisive role of actors such as Supreme Court Justice Felix Frankfurter and Pendleton Herring, co-author of 1947\u27s National Security Act, this Article details how emerging judgments about the limits of popular knowledge and mass deliberation fundamentally altered the basic structure of security practices. Countering the pervasive wisdom at the founding and throughout the nineteenth century, this contemporary shift has recast war and external threat as matters too complex and specialized for ordinary Americans to comprehend. Today, the dominant conceptual approach to security presumes that insulated decision-makers in the executive branch (armed with the military\u27s professional expertise) are best equipped to make sense of complicated and often conflicting information about safety and self-defense. The result is that the other branches—let alone the public writ large—face a profound legitimacy deficit whenever they call for transparency or seek to challenge coercive security programs. Not surprisingly, the tendency of legalistic reform efforts has been to place greater decision-making power in the other branches and then to watch those branches delegate such power back to the executive

Freedom Struggles and the Limits of Constitutional Continuity

This Essay challenges the view that although the actual and everyday Constitution may be riddled with real injustices, progressives should maintain faith in an idealized document and should see the shared language of constitutionalism as the privileged instrument for redeeming political life. Instead, it argues that faith should reside in an ideal of effective and equal freedom alone. Indeed, such a commitment may at key moments require pursuing constitutional rupture and rejection. The Essay highlights this point by reinterpreting two central decisions from the Civil War and Reconstruction eras: The Prize Cases (1863) and Ex parte Milligan (1866). These cases underscore how during a period of social transformation constitutional discourses had the real effect of constraining and even undermining meaningful change. The lesson for the present is that progressives should view their relationship to constitutional traditions strategically — to be defended when those traditions serve emancipatory purposes and questioned or discarded when they do not