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America's marketplace of ideas is threatened by social media platforms and a government security apparatus that have joined together to suppress the free exchange of ideas. In 'Free Speech and Turbulent Freedom', Michael J. Glennon offers an incisive defense of free speech in the digital public square. Drawing on the intellectual journey of Supreme Court Justice Oliver Wendell Holmes Jr., who shaped the modern First Amendment, Glennon argues that a lively and robust marketplace of ideas is the surest guarantor of social stability. Crisply written and lucidly argued, this timely book calls on the courts to protect the speech interests not merely of the government and Big Tech, but of all participants in the marketplace of ideas.

America's marketplace of ideas is threatened by social media platforms and a government security apparatus that have joined together to suppress the free exchange of ideas. In 'Free Speech and Turbulent Freedom', Michael J. Glennon offers an incisive defense of free speech in the digital public square. Drawing on the intellectual journey of Supreme Court Justice Oliver Wendell Holmes Jr., who shaped the modern First Amendment, Glennon argues that a lively and robust marketplace of ideas is the surest guarantor of social stability. Crisply written and lucidly argued, this timely book calls on the courts to protect the speech interests not merely of the government and Big Tech, but of all participants in the marketplace of ideas.

Glennon challenges the myth that U.S. security policy is still forged by America's visible, "Madisonian institutions": the President, Congress, and the courts. Their roles, he argues, have become largely illusory. Presidential control is now nominal, congressional oversight is dysfunctional, and judicial review is negligible. He details the dramatic shift in power that has occurred from the Madisonian institutions to a concealed "Trumanite network"--The several hundred managers of the military, intelligence, diplomatic, and law enforcement agencies who are responsible for protecting the nation and who have come to operate largely immune from constitutional and electoral restraints

Why has U.S. national security policy scarcely changed from the Bush to the Obama administration? And why does it matter? The theory of 'double government' posed by the 19th century English scholar Walter Bagehot suggests a disquieting answer. The public is encouraged to believe that the presidency, Congress, and the courts make security policy. That belief sustains these institutions' legitimacy. Yet their authority is largely illusory. National security policy is made, instead, by a 'Trumanite network' of several hundred members that is largely concealed from public view.

Cover Page -- Half-title Page -- Title Page -- Copyright Page -- Dedication Page -- Contents -- Foreword -- Preface -- Acknowledgments -- Chapter One: Congress vs. the President -- Little v. Barreme -- The Steel Seizure Case -- United States v. Curtiss-Wright -- Chapter Two: The Separation-of-Powers Doctrine in Foreign-Affairs Disputes -- The Separation-of-Powers Doctrine: A Constitutional Oakland? -- Analysis of the Court's Methodology -- A Framework for Decision Making -- Chapter Three: The War Power -- Plenary Presidential War Power -- The War Powers Resolution -- Chapter Four: The Treaty Power -- Conditioning Senate Consent to Treaties -- Treaty Interpretation -- Treaty Termination -- Full Senate Review of the Treaty Process -- Conclusion -- Chapter Five: Presidential Policy and Executive Agreements -- Plenary Executive Diplomatic Powers -- Executive Agreements -- Conclusion -- Chapter Six: War-making Treaties -- Constitutionality -- United States Mutual-Security Treaties: Text and Legislative History -- Conclusion -- Chapter Seven: International Law as Our Law -- Presidential Power to Violate Customary International Law -- Judicial Authority in the Face of Congressional Silence -- Functional Capabilities and Constitutional Responsibilities -- Conclusion -- Chapter Eight: National Security: Congressional Oversight and Judicial Review -- The Mandate of National Security -- Aggressive Congressional Oversight -- The Role of the Courts -- Conclusion -- Appendix A: Lowry v. Reagan -- Appendix B: Use of Force Act -- General Index -- Index of Cases.

I am going to say a few brief words this afternoon about one of the great myths in American constitutional law. That is the myth that the federal government has exclusive power over foreign affairs, the myth that the United States is always required to speak internationally with one voice. That myth is flat wrong. It is belied by the constitutional text, by subsequent practice, and by the functional purposes of federalism. Consider each in turn.

Historical practice, or custom, has long been seen as a source of authority in the resolution of separation-of-powers disputes. In two recent cases assessing the limits to the president's power regarding the recognition of foreign nations and the making of recess appointments, the Supreme Court heavily emphasized past practice. Historical practice, the Court said, reflects "the compromises and working arrangementsth at the elected branches of Government themselves have reached." in the realm of war powers, the executive branch has long relied on custom to justify military initiatives that were carried out without congressional approval. In essence, the executive has argued that because force has been used in the past without congressional approval, the same is permissible in various other situations (for example, in the Dominican Republic, Grenada, Haiti, Kosovo, and Panama).