Constitutional Contortion? Making Unfettered War Powers Compatible with Limited Government

Abstract

War requires strong, centralized and efficient government. But that same sort of government is a conservative's worst nightmare when it comes to domestic policy. This has left conservatives with a stark constitutional conundrum, at least since the First World War: Must they sacrifice a commitment to limited government in order to play an essential world role? Or, conversely, must they sacrifice that world role to assure liberty and limited government at home? This essay, a review of John Yoo's "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11," argues that Yoo's is struggling to develop a constitutional justification for an assertion of extraordinarily broad Executive power and yet, at the same time, a theory that attempts to build barricades against the risk that this massive central power might blow back, and erode constitutional limits on central government at home.

Keywords: war and emergency powers, separation of power, John Yoo, George W. Bush, Richard Cheney, constitutional interpretation, original intent

JEL Classification: K40