American Constitutional Law Research Articles

Above the Law: From Medieval England to Trump v. the United States

Abstract There is nothing unprecedented about prosecuting Donald Trump. While it’s certainly true that no president has (yet) to be indicted, if we look at to the long stretch of English political-legal history, we find many precedents. Because what happened in England fueled the American Revolution and the Framers’ view of the chief executive. As Richard II and Charles I discovered to their cost, acting as if they were above the law could lead to their deposition and eventual death, and the framers agreed. Thomas Jefferson asserted in A Summary View of the Rights of British America (1774), retained “the powers of punishment or removal” of their rulers. Holding the chief executive, whether a king, a prime minister, or a president is irrelevant, to account for alleged crimes is, as the phrase goes, baked into American constitutional law. But the Supreme Court has ruled otherwise. The president now enjoys the immunity Charles I claimed. We are now at the cusp of something without precedent: an absolutist presidency.

Between Authority and Usurpation? Common Good and Constitutional Government

Abstract The classical tradition of law and government supports lawful authority and condemns usurpation. But the common good sometimes provides a reason to sweep aside existing constitutional arrangements. This article considers the way in which authority and usurpation feature in Adrian Vermeule’s recent book, Common Good Constitutionalism, and thus reflects on the nature of constitutional government. Vermeule’s work combines a commendable philosophy of government with a questionable philosophy of legal reasoning, which weakens the force of Vermeule’s account of American constitutional law and practice. Reflection on the scope of the common good—on whose common good counts—has important implications for how, and for whom, authority should be exercised. Collective agency is important in securing the common good and representative democracy is an important means to unite a people in common action for their good. Constitutional government should aim to command popular support. Forms of constitutional government are contingent, but usurpation of lawful public authority is an evil that should be avoided.

The Path of the Prerogatives

Abstract The path of the prerogatives refers to the process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction reflected in the text of the Constitution by the Necessary and Proper Clause. This article investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in Wilson’s 1774 essay on the legislative authority of Parliament, the Articles of Confederation, and the Declaration of Independence. The article also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation, in which implied powers are vested without needing to be enumerated. Finally, the article points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.

Applied corpus linguistics and legal interpretation: A rapidly developing field of interdisciplinary scholarship

This article offers an overview of developments in a newly emerging interdisciplinary research field: legal corpus linguistics. The field brings together corpus research and legal theory by applying corpus-analytic techniques and linguistic concepts to facilitate the interpretation of legal texts. Despite the field's short history, it has already contributed important new insights into the meaning of statutory texts and parts of the U.S. Constitution, insights that may have significant practical implications for the American legal system. Our article provides an overview of relevant developments in legal corpus linguistics, from early success stories to recent and ongoing collaborative work between corpus linguists and legal scholars. It aims to highlight the benefits and illustrate the potential of this type of interdisciplinary work by summarizing three recent case studies, each of which deals with an important topic in American constitutional law. The case studies focus in turn on the following parts of the U.S. Constitution: (1) Article III and the meaning of “cases,” (2) the Appointments Provision in Article II, Section 2 and the meaning of “such inferior officers,” and (3) the Impeachment Provision in Article II, Section 4 and the meaning of “misdemeanors.” All three case studies use corpus analysis to explore phraseological patterns in large collections of Founding Era texts to provide insights into the meanings of the selected words and phrases in context during the time the Constitution was drafted and ratified. The article discusses the practical relevance of results from these case studies and potential implications of this and related work in legal corpus linguistics for contemporary and future litigation.

Breves ajustes à contribuição da sociologia histórica ao constitucionalismo latino-americano

Abstract The main objective of the article is to present the historical sociology as a method capable of generating innovative approaches to the field of Latin American constitutional law. Considering the logic of long term (long durée), the article problematizes the need to overcome the constituent dynamics only as a construction of the future to reach a strategy of unveiling continuities. Based on elements of the Brazilian reality, the article presents two cases in which the potential for applying the method of historical sociology to constitutionalism in the region is indicated. First, the permanence of authoritarian legality through the performance of courts after the democratization of the region. Second, the normative constitutional and infra-constitutional formation of the public administration in Brazil. The methodology used is the analytical essay and its foundation, for indicating the concrete historical problems presented, is the opening of the method of historical sociology to the hybridization of disciplines.

The Political Jurisprudence of Paul W. Kahn

AbstractThis article presents an account of the work of the American constitutional law scholar, Paul W. Kahn, by situating it within a European tradition of political jurisprudence. After introducing certain basic features of this school of political jurisprudence, it proceeds to examine and evaluate Kahn’s work relating to the political, the state, sovereignty, collective identity and constitution within the framework of that distinctive worldview.

К вопросу о конституционном правотворчестве Верховного суда США в историко-правовом контексте

The article examines the main aspects of law-making carried out by the Supreme Court of the United States through the formation of constitutional doctrines. The relevance of the work is due to the fact that the study of issues related to the development of American constitutional law from the point of view of the contribution of judicial law-making can be useful in solving multidimensional problems of law-making and law enforcement of various states, including the Russian Federation, despite the lack of a unified approach. The author, using the historical and system-structural method, reveals fundamental approaches to the creation and amendment of the US Constitution, carries out a theoretical analysis of the main mechanisms of the development of the US Constitution, which occurs through the interpretation of its provisions by the Supreme Court, after which they (provisions) without formal change acquire special legal significance in the modern socio-legal sense. Reveals the mechanisms of the formation of a ‘living’ constitution, conditioned by the interpretations of the Supreme Court of the United States, as elements of law-making. States that the phenomenon of lawmaking of the Supreme Court in the United States is due to legal convergence, and is not limited exclusively to interpretations and interpretations within the framework of doctrines, but is directly related to precedents in court decisions. Concludes that the US Supreme Court plays a huge role in the development of constitutional provisions, despite the fact that lawmaking is not officially defined by its main function.

Identifying Super-precedents in an Era of Human Rights

This Article discusses what a “super-precedent” is in American Constitutional Law. Additionally, it describes the current criteria used to identify super-precedents and the limitations of these criteria. It then mentions the various precedents that have been afforded this august title and suggests the need for an additional criterion to ensure the continued protection of those precedents most closely associated with the protection of human rights. Finally, the article identifies three additional precedents, beyond those usually recognized, that ought to be ranked super-precedents and provides a basis for ranking all precedents, grounded in autonomy, when they either conflict with one another or encounter a compelling state interest.

Is ‘Originalism’ a Sinking Ship?

This article seeks to reason, identify and enquire about the notion of originalism and the mechanics behind it. It begins with an introduction about constitutional interpretation and the delicate nature of the exercise. Thereafter, the author will delve into Originalism and will analyze the various contours associated to it; such as its historical and political relevance. This will be done by questioning the premise of originalism itself with due emphasis on the academic objections which have been raised overtime. To get a comprehensive account of the key concepts involved, the author will refer to American Constitutional law jurisprudence and the role of SCOTUS (The Supreme Court of the United States) from time to time. The article will also take a peek at the Indian Supreme Court and its approach towards Originalism. Is originalism a practice of a bygone era or is it a mitochondrion of wisdom needing its due reverence; is a question which forms the backdrop of this paper. The author has attempted to approach the question with an investigative outlook and has tilted his inquiry against originalism. In order to provide a wholesome and scrupulous analysis, the author has taken recourse to the various journal articles, books, case laws, legal commentaries and other web resources to the best of his ability, knowledge and understanding.

4. THEORIZING CONSTITUTIONAL HISTORY

ABSTRACTThe historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser's theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth‐century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America's age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order predicated on racial classifications of whiteness.

Constitutionalism Reborn

As Conservatives have come to dominate the US Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its Conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the UK. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the US seceded from the UK. It is perplexing since the US constitutional revolution stands for rejection of the British model of parliamentary sovereignty. This Article intends to redefine the relationship between the US and UK constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the US’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and supreme Constitution. Rather, we did not realize that parallel developments were taking place in the UK. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the UK. We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the US felt powerless to deal with a President who does not care for constitutional norms, the Article reveals how the model designated enforcement mechanisms for constitutional norms/conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the US Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the US under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the People.

Constitucionalismo Andino y su desarrollo en las Constituciones de Bolivia, Ecuador, Perú, Colombia y Venezuela

El Derecho constitucional suramericano ha estado, desde sus inicios, enmarcado por fuentes europeas. Sin embargo, con el surgimiento de los movimientos sociales indígenas, se han iniciado procesos de reflexión sobre las fuentes del derecho propio o derecho ancestral indígena y se cambiado paulatinamente el concepto constitucional de corte occidental introduciendo principios basados en el pluralismo jurídico y la recuperación histórica de las culturas autóctonas. Uno de los pilares del nuevo movimiento constitucionalista, llamado Constitucionalismo Andino, es la inclusión y protección de las culturas jurídicas indígenas, además uno de sus avances ha surgido con la inclusión de principios ancestrales de la cultura incaica como el derecho al “buen vivir” y los orígenes, fundamentos y fuentes de este sistema jurídico. El presente artículo efectúa un estudio comparativo de los países que han desarrollado estos principios mostrando los avances en cada uno de los casos, cambiado la perspectiva del derecho constitucional y la visión de las sociedades.

The Southern and Western Prehistory of “Liberty of Contract”: Revisiting the Path to Lochner in Light of the New History of American Capitalism

Abstract This article examines the local legal histories of two “liberty of contract” constitutional disputes prior to Lochner in the South and West: Allgeyer v. Louisiana (1897) and Holden v. Hardy (1898). Drawing inspiration from the new history of American capitalism literature that has recently rethought the genesis of the modern American economy through a Southern and Western lens, this article argues that we have yet to fully grasp the relationship between uneven state development politics and economic rights jurisprudence under American constitutional law. In so doing, I build a new narrative that takes into account development politics, Louisiana lawyers with roots in the Confederacy, and Western Populist constitution-makers to rethink the origins and development of a doctrine that arguably continues to shape the modern world.

How Has American Constitutional Law Influenced Medical School Admissions and Thwarted Health Justice?

Medical schools have sought to diversify their classes to motivate inclusion, to draw upon the educational benefits of diversification, to promote educational opportunity, to facilitate representation of persons with minoritized identities in the US physician workforce, and to advance racial and ethnic equity in health status and access to health services regionally and nationally in the United States. The US Supreme Court has allowed schools' race-conscious admissions when their purpose is to diversify an incoming class but not to remediate inequity. This article explains why this limit to affirmative action laws' implementation blunts medical schools' capacity to do their part to secure health justice for all in the United States. Since the Supreme Court is poised to rule more narrowly on affirmative action law again, this article also considers key threats to health justice posed by further limiting or eliminating race-conscious admissions.

Die föderale Kompetenzverteilung in der Schweizerischen Eidgenossenschaft aus historischer Sicht

The distribution of powers in the Swiss Confederation has a long tradition dating back to the time before 1798 but was also influenced by American constitutional law. Todayʹs attribution of competences has, however, departed considerably from its original model and largely resembles a functional division of tasks, with the legislative and governmental powers situated at the federal level and the administrative and judicial powers resting with the cantons.

GST Compensation to States: An Ineluctable Obligation on the Union

The Central Government in the year 2020 initially refused states a recompense for both actual and notional losses in their GST revenues for FY 2020-21. While the discombobulated state governments scrambled to find legal and fiduciary justification to their demands, the Center simply cited situational expediency and lack of any obligation for its denial. It suggested that two alternatives to the states, that involved them borrowing, as the only mechanism for compensation. As the GST Council debates and the 101st Constitutional Amendment Act would collectively reveal, the Center had promised to the contrary. The obligation of maintaining a constant supply of compensation-credit to states emanates from that promise and is all the more binding given the huge sacrifice made by the States. The historically unique creation of legislative tax-fields outside of the Schedule VII and the overwhelming dominance of the Center in administering them were both premised on this future consideration to the states. The proviso to Art. 368(2) has the same outcome as its laterally inverted version, Art. 252, insofar as it crafts a contract between two vertical government-branches operating in a ‘federal market’. This, then, adumbrates the foundation of what presently prevails in American Constitutional law as the ‘anti-coercion’ principle. The promise of GST compensation then becomes a contractual obligation at a Constitutional level, eliminating any legal space of revocability otherwise available to the Center.

Concept of International Legal Policy in Foreign Comparative Legal Studies

INTRODUCTION. International legal policy is a new object in international legal studies, although this phenomenon exists as long as the external relations of States. International legal policy is a rare case of research subject, which remains unexplored. International legal policy as a Concept of State's policy towards legal aspects of international relations was formed in the 80-s of last century. Earlier the questions and their particular aspects now embraced by international legal policy were divided between international lawyers and international relations researchers. However international legal policy is an integral system of State's approaches to international legal matters, therefore its punctual research is relevant only from comparative point of view. It would be interesting to compare States' positions on concrete issues or States' tactics at different stages of realization of international legal norms. This article concerns the question whether comparative studies of international legal policy can be integrated into existing fields of comparative foreign relations law or of comparative research of international law.MATERIALS AND METHODS. The article surveys theoretic questions primarily on the base of doctrinal sources. The retrospective analysis of the comparative method in international law is based on works published by Russian and foreign experts during the XX century. Particular attention is drawn upon works of founders of comparative research in international legal studies. The concept of foreign relations law in the scholarship and practice of the U.S. is researched on the base of national case law, which formulated the principle of executive exceptionalism in State foreign policy. Research work is realized with the use of analysis, synthesis, systematisation, as well as methods of historical and comparative method.RESEARCH RESULTS. The Article consistently reveals meaning and the content of international legal policy as one of the authors of the concept, French lawyer and diplomat G. de Lacharriere, presented it. The Article examines the history of foreign relations law in the U.S. and presents its doctrinal estimations from viewpoint of American constitutional law. The research work specifies different points of view on content of foreign relations law and approaches to its justification. Indeed international legal policy and foreign relations law can be compared as two types of State’s approach to its legal position on the international scene. There are six parameters for comparison: sources, functions, subjects of both concepts, questions on allocation of foreign powers in the State, on relationship between international and national law, on the role of national courts in interpretation and application of international norms. In consideration of “national interest” concept the attribution of international legal policy to international organisations or supranational association is judged as incorrect. The article examines the question of applicability of comparative method in the international law within the discourse among scholars on how differently modern States evaluate international legal norms. Analysis of the tendency to contrasting States’ approaches to the international law encompasses its development from notions “international law of transitional period”, “international legal systems”, to notions “national approach”, “legal style”, “legal culture”. Brief survey of comparative international law gives perspective on diversity of approaches to comparable aspects of the international law. Comparative studies of international legal policy could get consolidated among them.DISCUSSION AND CONCLUSIONS. At first sight the comparative method is hardly applicable to the international law. However the universality of the international law doesn’t exclude variety of approaches to it. The research into international legal policy determined by national interests of every State allows to systemize positions of a State into a single strategy. At the same time comparative method doesn’t only provide classical comparison of States’ positions by issues, but also offers to compare inner-workings of the international legal policy and shaping factors. Nowadays in the context of trends on diversification of international relations (fragmentation, regionalisation), growing popularity of the comparative method translated into comparative foreign relations law and comparative international law. However international legal policy doesn’t correspond with categorial apparatus of comparative foreign relations law. International legal policy is nor able to apply methodological tenets of comparative international law due to its multivalued content. Most likely comparative studies of international legal policy can become a new approach within comparative international law, which should be based on the principles of concreteness and consistency.

Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China†

Abstract American constitutional law haunts the contemporary Chinese constitutional imagination. China’s reception of American constitutional law occurred in two major stages. In the first stage, which spanned from the 1980s to the early 1990s, Chinese intellectuals understood American constitutionalism as a particular political regime to be politically criticized or objectively appraised, with the tripartite separation of powers overwhelmingly highlighted as a core feature of the American constitutional-political system. In the second stage, which began in the late 1990s, a paradigmatic shift from a political, regime-centered perspective to a legalized, court-centered approach occurred in China’s introductions to and studies of American constitutionalism. The U.S. Supreme Court and the concept of judicial review now primarily preoccupy most Chinese constitutional minds; these features of the American system have formed the focal points of reference for Chinese constitutional reform. This shift from the first stage to the second reflects both ideological and social changes since the economic reform in China, as well as international impacts.

Human Rights, Public Health, and the Idea of Moral Plague

Human Rights, Public Health, and the Idea of Moral Plague* David A. J. Richards (bio) it is a distinctive feature of western ethics and law that the best standards of argument in both areas are cultivated by self-critical methodologies of historiography, empirical science, and ethical reflection. We insistently reflect on the history of our ethics and law, and think of such reflection as part of a larger process of cultural selfcriticism through which we identify those strands of our tradition worth preserving and elaborating (for example, respect for the essential liberties of free people committed to democratic processes under the rule of law) and those strands that we now reject (for example, slavery and the subjection of women). At the center of this self-critical enterprise is a creative tension between its affirmative and negative components, for we often best understand the point of our most enduring values when we see how they often flourished in uncritical tension with our gravest moral corruptions and political failures. We may better understand, for example, liberty of conscience as an ethical and legal value when we see how Augustine, on the one hand, offered a philosophical psychology supportive of freedom of conscience as an ultimate value and, on the other hand, defended a theory of persecution quite inconsistent with such freedom;1 our constitutional tradition's rejection of Augustine's theory of persecution is thus understood as a self-critical rejection of a corruptive moral argument that undermined a defensible ethical and legal ideal.2 Correspondingly, we may better grasp [End Page 463] our own ethical and political responsibilities now if we can frame our central contemporary dilemmas by critical reflection that both constructively elaborates the central principles of ethics and law at stake and exposes our recurrent temptations to moral corruption for what they are. There is no more fruitful topic for such inquiry than the dilemmas that surround the AIDS health crisis, including our very temptation to frame the discourse in the historical terms of the social response to plagues. I will, in the course of this essay, offer reasons to reject such terms of discourse precisely because its motivation, the idea of a moral plague, is not merely an outmoded myth but, in Susan Sontag's sense,3 an obfuscating metaphor of illness false to fact and ideologically freighted with moral and political corruption; it is morally and politically irresponsible, so I shall argue, to give any weight to this pernicious conceptual anachronism in contemporary circumstances. There are genuine dilemmas that surround response to the AIDS health crisis, but the idea of moral plague is not one of them. Rather, the irrational political force that the idea enjoys conflicts with the principles that should govern these issues. It is fundamental to our dilemma that our legitimate publichealth concerns for control of a deadly virus center in the United States on the populations at highest risk4 and that these populations, on independent ethical and/or legal grounds, increasingly call upon our concern against abusive state authority. I focus in my discussion here on homosexuals and their rights to both privacy and antidiscrimination because the level of ethical and constitutional argument is fairly well advanced,5 albeit yet unsuccessful at the highest judicial level.6 But comparable arguments could fairly be developed both for IV drug users7 and the racial and ethnic minorities8 that constitute many of those users.9 We need a clear understanding of human rights and to what extent homosexuals' claim to such rights are just in order to frame the corresponding issues of public health. [End Page 464] HUMAN RIGHTS AND OVERCRIMINALIZATION It is now common ground among Western liberal democracies that their governing political theory imposes significant constraints of human rights on the scope of state coercive power over the lives of persons. John Stuart Mill's On Liberty influentially formulated these constraints in a general doctrine that may be termed the "harm principle": subject to background duties of justice and fair contribution, the coercive power of the state can only be imposed on acts causing harms to other persons, and harms to self do not suffice.10 American constitutional law has elaborated...

Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today

Author(s): Tyler, AL | Abstract: This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and-again against the advice of his advisers-later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill-who operated in a different legal context that granted him greater powers than his American counterpart-came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions. The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill's change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country's constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy. Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II.