Sunday, July 19, 2015
One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.
Wednesday, July 8, 2015
"Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs"
This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes.
In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away.
The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions.
ProPublica has this interesting Q&A on the re-emergence of the Fisher case with Joan Bizkupic, author of “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice.”