Tsai on War Constitutionalism

Robert L. Tsai, American University Washington College of Law, has posted Three Arguments About War, which appears in Constitutional Commentary 30 (2014) .  Here is the abstract:

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual equality to First Amendment freedoms.

This article starts to fill gaps in our understanding of America’s war saturated legal culture. It does so by defining the practice of war constitutionalism, drawing on rich examples from our past, identifying some of the most frequently occurring forms, and evaluating the rule of law concerns posed by each mode of war-dependent argumentation. Three major arguments are scrutinized systematically: the war justification, which relies on a claim about a live conflict; the war legacy, a historical-ethical argument drawing legal lessons from a nation’s war experience; and the war metaphor, which figuratively describes a public policy issue in war-like terminology.