Is a Geostrategic Theory of Constitutional Interpretation a Threat to Liberty?

Akhil Reed Amar expounds a bit of his geostrategic theory of liberty in conjunction with the 9/11 tragedy in an article entitled, "A Mid-September Meditation: How September 11 Mapped Onto the Framers' Theory of Geostrategic Theory of Liberty" (H/T Opinio Juris). He makes the resounding point that the Framers' wrote the Constitution with the intent that the United States would be separated from the old world and, consequently, the troubles of the old world, by the Atlantic ocean, and, eventually, the Pacific ocean. He argues that the geostrategic invulnerability of the United States is an essential ideological truss supporting the tenets of the Constitution and the Bill of Rights. However, that truss buckled when the WTC toppled and American blood was spilled on the soil of the continental United States for the first time in 150 years.

Then came 9-11. And in a flash it became blindingly clear to me that Publius's vision of America's splendid oceanic isolation--of a New World far removed from the woes of the Old World--cannot serve us well today, or for the centuries to come. Planet Earth is, in truth, One World. Global warming, transcontinental pandemics, deforestation, worldwide poverty, overpopulation, nuclear proliferation, free trade, jet travel, international human rights, the Internet, and, of course, the threat of international terrorism--all these planetary issues require planetary solutions.

Such solutions will require attention not just to individual rights, but also to international structures of cooperation and coordination--structures that will need to be far more effective than the United Nations as currently organized. Such solutions will also need to involve not just judges, but executives and legislatures. So we shall have to go beyond the tired maxims of my teachers, with their exaggerated confidence in Bills of Rights and judicial review.

And we shall also be obliged to go beyond the Founders' vision, based as it was on a geographic foundation that has been washed away. What we need is nothing less than a new generation of Publii offering up creative global solutions for our global challenges. Any visionaries out there?

Yes, there are visionaries out there, but they may not be the kind of visionaries envisioned by Amar. The Bush administration is a set of visionaries that are espousing rhetoric strikingly similar to that found in Amar's article. The key rationale is that the War on Terrorism transcends all national boundaries--even those created by oceans--making the continental United States part of the battlefield.

The arguments justifying the government's actions in the Hamdan case and the Department of Justice White Paper justifying warrantless wiretapping are replete with references to the Authorization to Utilize Military Force (AUMF) against al Qaeda and to deter future terrorist attacks. The AUMF authorized the president to "use all necessary and appropraite force" against those responsible for the September 11th attacks. Moreover, it authorized the president to "determine" the persons or groups responsible for those attacks to take all actions necessary to prevent further attacks. Generally, this is cited in conjunction with a reference to Article II of the Constitution, which vests the president with the commander in chief power and buttressed by the Curtiss-Wright cite: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."

The DOJ White Paper justifying NSA wiretapping stated in the opening paragraph: "The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States." It continues with this type of argumentation, claiming that al Qaeda has infiltrated "our cities and communities and communicated from here in America[.]" According to the DOJ White Paper, "Of vital importance to the use of force against the enemy is locating the enemy and identifying its plan of attack."

This seems to represent the general mode of argumentation. It begins with a retelling of the 9/11 tragedy, which is supposed to be a visceral reminder that the enemy is amongst us and intends to shed more blood. Then there is the general cite to the President's power as Commander in Chief, quickly augmented by a vague reference to the Framers' intent that the President is vested with the responsibility of protecting the citizens of the United States. When the power vested in the Congress is mentioned in response, the AUMFs are waved in the air like the Flag itself.

What rejoinders are left if reference cannot be made to the Framers' intent? If the foundation that supported the Constitution and the Bill of Rights was undermined on 9/11 simply by blood being spilled on US soil, then what foundation did it ever really have?

Comments

[Christopher Cassidy]

Amar's argument, I believe, is not inviting "visionaries" such as John Yoo and Alberto Gonzalez to trample the Constitution at their boss' covenience. Instead, it seems that Amar agrees with Mr. Hodgkins, that something must be done to stave off such invasions of liberty as the US has seen under the Bush Administration. Amar states that it was not "the Bill of Rights, and...the Supreme Court [that] secured 'the Blessings of Liberty' during the nation's first 150 years[.]" It was the isolation from other major powers, provided by America's position between the Pacific and the Atlantic.

So, Amar is not providing any excuse for sacrifices of liberty, in the face of global challenges. He is making a call for visionaries to provide alternative routes through which America might, once again, secure "the Blessings of Liberty", in spite of our natural moats having proven obsolete and insufficient.