185 Pages Posted: 20 Aug 2012 Last revised: 31 Aug 2012
Date Written: 2011
The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view — one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find root in the law, with serious constitutional implications.
The article begins by considering what, exactly, is meant by “national security.” It posits a Hamiltonian definition: laws and policies directed at protecting the national government in its efforts to aid in the common defense, preserve public peace, repel external attacks, regulate commerce, and engage in foreign relations. It turns then to the Founding and suggests that the first epoch was marked, primarily, by the drive to Union and, secondarily, by the goals of establishing international independence and building the country’s economic strength. The Civil War represented a reversion to Union as the core of American security, with recourse to international independence and economic growth following Confederate defeat. The Spanish-American War brought the first epoch to a close, leading to the second, in which U.S. national security expanded to include a formative agenda in the global environment. The country would no longer be content with merely reacting to international developments; it would seek to shape the international arena. Domestically, the federal government sought to limit the rapidly expanding power of private sources of power, particularly corporate entities. Tensions between the goals of the first age and those of the second resulted in power struggles between the federal branches of government. During the third epoch, national security became the United States’ overriding interest, rendering all other concerns subservient. The economy, education, housing, health care, and civil rights came to be seen through a new lens, gaining for national security a privileged position. This third epoch began not with World War I or World War II (common markers in studies of U.S. foreign affairs), but with the rise of totalitarianism in the 1930s. World War II narrowed the focus to one form of threat — communism, while during the Cold War containment of the Soviet Union became the overriding goal. Resistance involved a combination of military engagement and humanitarian aid to countries resisting communist influence and, at a domestic level, the integration of industry, science, and political institutions. Strides in the domestic civil rights arena also became an important response to Soviet allegations of democratic injustice.
The fourth, and most recent, epoch emerged with the fall of the Berlin Wall. National security now dominates, making it the most powerful institutional engine. Risks, broadly defined, have been folded into the framework, with emphasis now placed on the effects that may result should anticipated risks become manifest. As a result, areas outside the traditional framework, such as climate change, public health, drugs, and criminal law, have been drawn into the national security infrastructure. Executive branch authorities in regard to each of these areas have rapidly expanded, raising a number of constitutional concerns.
Keywords: national security law, domestic and foreign affairs, militarization, expansion, legal history
JEL Classification: K00, K10, H56
Suggested Citation: Suggested Citation
Donohue, Laura, The Limits of National Security (2011). American Criminal Law Review, Vol. 48, pp. 1573-1756, 2011; Georgetown Public Law Research Paper No. 12-118. Available at SSRN: https://ssrn.com/abstract=2132563