From the American Civil War to the War on Terror: Three Models of Emergency Law in the United States Supreme Court
This book offers a systematic and comprehensive account of the key cases that have come to shape the jurisprudence on emergency law in the United States from the Civil War to the War on Terror. The legal questions raised in these cases concern fundamental constitutional issues such as the status of fundamental rights, the role of the court in times of war, and the question of how to interpret constitutional limitations to executive power. At stake in these difficult legal questions is the issue of how to conceive of the very status of law in liberal democratic states. The questions with which the Supreme Court justices have to grapple in these cases are therefore as philosophical as they are legal. In this book the Court's arguments are systematized according to categories informed by constitutional law as well as classic philosophical discussions of the problem of emergency. On this basis, the book singles out three legal paradigms for interpreting the problem of emergency: the rights model, the extra-legal model and the procedural model. This systematic approach helps the reader develop a philosophical and legal overview of central issues in the jurisprudence on emergency.
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Chapter 1 Introduction
Part I Three Models of Emergency Law
Part II Emergency Law in the Context of Terrorism
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Ahrens aliens American Civil War argumentative framework Article Black’s Boumediene Braden Brief for Petitioners Brief for Respondents Chap Congress congressional authorization convened to try Court’s decision Court’s opinion CSRT decided detention discuss dissenting opinion District Court Eisentrager emergency governance emergency jurisprudence emergency powers emphasized Endo enemy combatants Ex Parte Milligan Ex Parte Quirin executive executive’s extralegal model fact federal courts federal habeas fundamental GuantaŽnamo Bay habeas corpus habeas petitions Hamdi Hirabayashi interpretation issue Jackson Japanese Americans jurisdiction to hear jurisprudential Kennedy Korematsu law of war liberty limited Lincoln’s military commissions Milligan model of emergency national emergencies national security O’Connor petitioners argued political branches President presidential principle Prize procedural model protections Pushaw question Quirin Rasul rights model Rumsfeld Scalia dissenting status statutory Stevens Supreme Court Suspension Clause t]he Terror Thomas dissenting trial try Hamdan UCMJ underpin violated War on Terror writ of habeas Youngstown