Chapter 1 - Introduction
What are the issues of the day?
Why does national security pose special legal problems?
What are the potential abuses of national security law?
Can you think of any from the historical record?
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?
Formal v. informal war?
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?
Did the Articles of Confederation solve these problems?
What informal war played out in the colonies?
The Constitution
How did the drafters deal with the problems seen during the Continental Congress era?
How were powers separated?
What about the state v. federal powers?
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?
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?