The Theoretical Constitutional Shape (and Shaping) of American National Security Law

In order to fathom the theoretical shape of the American national security constitutional system, and to appreciate how that system should be shaped in the future, it is vital to conceptualize the legal field of American national security law as the interaction of four constitutive dimensions. Initially the factual context involves two overarching general concerns: first, the maintenance of the Nation’s strategic advantage over challengers, competitors, and threats to America’s future; and second, the remarkable strategic responsibility of presidents of the United States to deftly shift from one serious, potentially catastrophic, crisis to the next. The second dimension is the policy trade-offs of American national security law between calculated permutations of liberty, on the one hand, and security, on the other hand. The third dimension of the field entails the threefold characteristics of the values and interests of American national security law—preserving the American nation and its rule of law, protecting the American people and homeland, and defending America’s allies and friends from unauthorized violence and natural catastrophes that might destabilize America’s strategic advantage. The final dimension of the field entails the legal doctrine of the primacy of the president to fashion national security presiprudence within broad constitutional executive powers, subject to reasonably deferential judicial review. Form and function in the American national security legal system is best understood as flowing from presidential decision and discretion. Three overarching philosophical problems of judicial review of the president’s national security decision-making entail the problem of knowledge, the problem of conduct, and the problem of governance. In turn, to flesh out and better understand these problems in concrete cases, the Supreme Court must be cognizant of the various aesthetics of national security law and the multiple potential types of national security arguments. In resolving problems of American national security law, the Court should refrain from citing foreign judicial precedent and should rely exclusively on American law and precedent for four functional reasons: (1) ethos and American identity, (2) effective dispute resolution, (3) meaningful agenda-setting and constitutional dialogue, and (4) judicial political legitimacy. Nevertheless, the Court should be cautiously open to non-precedential learning of transnational ideas regarding national security issues