Suchergebnisse

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.

The sharply contested religion cases from Germany in the late 1990s.point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its role in protecting the power of public discourse within the larger political process. The same holds for government religious speech: individual autonomy points in a number of different directions, leaving us with choices among different kinds of distortion and different roles for the courts, which we cannot resolve based on private religious choice alone. The German cases focus us on one normative vision of the political process which will probably never become our vision, but which does help us to see that even our decisions about government religious speech depend upon our assumptions and aspirations about the political process. The appeal of comparative law lies in the details, and the details of the current disputes in Germany around religion and government ask us to think again about exactly what we expect from the Establishment Clause here in America.

Although international. law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This Article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the Charming Betsy canon, maximizes the presumed preferences of Congress, advances separation of powers values, and promotes normative values that favor the use of international law as an interpretive tool.

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its role in protecting the power of public discourse within the larger political process. The same holds for government religious speech: individual autonomy points in a number of different directions, leaving us with choices among different kinds of distortion and different roles for the courts, which we cannot resolve based on private religious choice alone. The German cases focus us on one normative vision of the political process which will probably never become our vision, but which does help us to see that even our decisions about government religious speech depend upon our assumptions and aspirations about the political process. The appeal of comparative law lies in the details, and the details of the current disputes in Germany around religion and government ask us to think again about exactly what we expect from the Establishment Clause here in America.