How the Framers Would Think About Drones: A Framework for Evaluating Proposals to Reform the Obama Administrationns Drone Program

Abstract

An analysis of Constitutional-era texts, especially the Federalist Papers, reveals that when considering questions of Constitutional structure, the Framers supported or opposed specific proposals in light of three central ideas: 1) the extent of a power must be commensurate with its object, 2) accountability is inherent in structure, and 3) the distribution and promotion of knowledge must be taken into account in structure. In this author’s opinion, applying these three central ideas of the Framers to proposals to reform the Obama Administration’s drone program leads one to favor proposals that feature strong congressional oversight or carefully crafted, Congressionally created, ex-post actions against the government, as well as internal executive branch controls, rather than other proposals, such as ex-ante due process hearings, drone warrants, executive unilateralism, or the extension of the status quo.