But Professor Tushnet reminds us that, while we have the luxury of reflection, policymakers must act before the event.
Accordingly, unless we are confident that the constraints we put on policymakers really do respond only to tendencies to exaggerate uncertain threats or to develop ineffective policy responses to real threats, we should be reluctant to restrain policymakers because of our hindsight wisdom.
When the president acts pursuant to express or implied authorization of Congress, his authority is at its maximum (and courts are likely to acquiesce to executive authority).
But when the president acts in the face of or without legislative authority, his power is at its lowest ebb (and courts are likely to invalidate executive action). SIMMONS (2005), dealing with homosexual sodomy and capital punishment for juveniles, respectively.) Among other conclusions, Spiro illustrates how the international community appears to have restrained the United States government from a more serious assault on civil liberties.
To his credit, he does not attempt to resolve the differences of opinion on this point, but focuses on an equally critical questionhow to determine as a matter of law when Congress has signed [*781] off on military action.
This essay also points out reasons why the president has historically been more militaristic than the Congress.
Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. The difficult tension between the responsibility of a liberal democracy to protect individual freedoms and its concurrent responsibility to provide security to its citizens is most assuredly made more complicated by modern realities.
(After all, our present dilemma cannot be resolvedand our debate is hardly advancedby simply repeating Benjamin Franklins warning to his fellow colonists in 1759, They that can give up essential liberty to [*779] obtain a little temporary safety deserve neither liberty nor safety.) In the second generation of scholarship, civil libertarians remain leery of the presidents initiatives, but take seriously the possibility that prior tradeoffs between liberty and security should be reconsidered; and supporters of more security-oriented policies acknowledge the possibility that such policies may indeed pose serious threats to fundamental liberties.
15 No.8 (August 2005), pp.778-783 THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY, by Mark Tushnet (ed). For example, the first generation of scholarship was long on quips, short on analysis, and contributed little to the publics understanding of the real constitutional issues raised during a time of war.
This second generation of scholarship on the war and the Constitution differs from the initial set of responses to the positions advocated and policies adopted after the attacks of September 11, 2001, in a number of ways.
Unfortunately, loose statements about the need to balance liberty and security come close to exhausting the public discussion of this important question.
But the fundamental question remains the same today as it was two centuries ago: Is there a reasonable (and constitutionally acceptable) way to balance the need for the United States to protect itself from threats to national securitynot knowing when or where or how the next attack might occurwith the need to preserve individual freedoms?
Additionally, the second generation of scholarship treats constitutional policy during wartime as an example of constitutional policy generally, not as an exception to it.