Chapter 1 Introduction What are the issues of the day?

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Chapter 1 - Introduction

What are the issues of the day?

Why does national security pose special legal problems?

What are past abuses of national security law?

What are current practices that may be seen as abuses in the future?

Wisdom v. Legality

What did de Tocqueville mean when he said that Americans confused the question of the existence of a power with the wisdom of its use?

Should these be distinguished?

How is national security law like public health law?

How do the problems of federal national security law resemble the problems of state public health law?

Why was this parallel especially strong when the Constitution was written?

What modern concerns bring back these same issues?

Chapter 2 - Providing for the ‘‘Common Defense’’: The Original Understanding

How were most countries governed in the 1400s?

What were the justifications for this form of government?

What did the legal philosophers argue were better forms of government?

Why was separation of powers key to these arguments?

The Nature of War

What is the history of war?

Politics by other means?

What is Formal War?

What is Informal War?

Why does Informal War pose much more difficult issues for international affairs and international law?

What is the role of the state v. private parties?

What were letters of marque and reprisal?

Are wars waged by private parties now?

What is the role of private contractors and mercenaries in Iraq?

What additional issue are posed by mercenaries?

The Colonial experience

How were the colonies governed?

How much control did England really exercise over day to day affairs?

What was the colonial experience with standing armies?

What are the risks of a standing army?


What was the legal status of the colonies when they declared independence?

The Continental Congress

How was the country governed between independence and the Articles of Confederation?

What was the fundamental flaw in this system?

Why did it almost cost us the revolution?

The Articles of Confederation

What was the role of the states versus the federal government in the Articles of Confederation?

Why did this make it difficult to govern the country?

What external threats were still facing the US?

Did we control the continent?

Were the European powers at peace?

The Constitution

How did the drafters deal with the problems seen during the Continental Congress era?

What was the relationship between the states and the federal government in the original Constitution?

How were powers shared?

What were the founders expectations about the federal government?

How did the shape the Constitution?

Federal Separation of Powers

Three Branches of Government




How was separation of powers to protect the nation?

Did the founders anticipate having two branches controlled by the same political party?

Then Versus Now

How has the federal government changed?

What are the critical periods for this change?

Why does this pose Constitutional problems?

War in the Constitution

Why is the nature of war as understood by the drafters important?

What does this tell us about the congressional power to declare war?

Is this separate from the power to wage war?

What about defensive war?

Why is defensive war a special philosophical and religious issue?

Organization of the Military

What fundamental change in the organization of the military was not anticipated by the drafters and which undermines the Constitutional control of war making?

Why does it matter that the congress can now allow a war to be started without having to do it themselves?

Review of Constitutional Provisions

Congress - Article I, Section 8

President - Article II, Section 2

Ambiguous - Habeas Corpus - Article I, Section 9

Chapter 3 - The Gloss of History: An Introduction to the Separation of National Security Powers

Learning Objectives

Does the provision of a statutory process implicitly disapprove alternative processes?

How do we make sense of multiple opinions based on different assumptions?

Is Youngstown strong precedent, or just a case driven by special facts?

What do post 9/11 events tell us about current meaning of Youngstown?

The Korean War

Map of Korea and the Military Intrusions

Did the US declare war?

What was the role of the UN?

What is the historical significance of this response?

Is the war popular in 1952?

How well did it work out?

What is the current status of North Korea?


How did Truman become president?

What was famous about his 1948 reelection?

How popular was he?

Why should this matter?

Is there a parallel with the current national security cases before the court?

This case took place in 1952

Why might that be important?

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