Constitutional Law | Legal History | National Security Law
Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This Article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, critically functioning to reinforce and legitimize government power rather than primarily to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. At the same time, however, public discussion about protecting the Constitution—and a distinctively American way of life—has also served as a key justification for strengthening the government’s security infrastructure over the long run.
I argue that in the late nineteenth and early twentieth centuries, there existed significant popular skepticism of the basic legitimacy of the Constitution. Against the backdrop of World War I and the Russian Revolution, a combination of corporate, legal, and military elites initiated a concerted campaign to establish constitutional support as the paramount prerequisite of loyal citizenship. Crucially, such elites viewed the entrenchment of constitutional commitment as a fundamental national security imperative. They called for a dramatic and permanent extension of the reach of the federal government’s coercive apparatus. In this process, defenders of the Constitution endorsed many of the practices we most associate with extremism and wartime xenophobia: ideological uniformity, appeals to American exceptionalism and cultural particularity, militarism, and political repression. The World War I origins of today’s constitutional climate do not simply reveal a troubling but distant past. Rather, the foundations developed nearly a century ago continue to intertwine constitutional loyalty with the prerogatives of the national security state in ways that often go unnoticed, making it difficult to separate the liberal and illiberal dimensions of American constitutional culture.
Aziz Rana, "Constitutionalism and the Foundations of the Security State," 103 California Law Review (2015)