Constitutionalism and the Foundations of the Security State

Aziz Rana

Cornell Law School

February 7, 2014

103 California Law Review 335 (2015)
University of Texas School of Law, Rapoport Center Working Paper
Cornell Legal Studies Research Paper No. 14-10

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, functioning critically to reinforce and legitimate government power rather than simply 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. But at the same time, public discussion around protecting the Constitution – and with it 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, significant popular skepticism actually existed concerning the basic legitimacy of the Constitution. But 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 fundamentally a national security imperative; they called for dramatically and permanently extending the reach of the federal government’s coercive apparatus. In the process, defenders of the Constitution reproduced many of the practices we most associate with extremism and wartime xenophobia: imposed deference and ideological uniformity, appeals to exceptionalism and cultural particularity, militarism, and political repression. Moreover, the problem with such World War I origins for today’s constitutional climate is not simply that of a troubling but distant past. Rather, the foundations developed nearly a century ago continue to intertwine constitutional attachment with the prerogatives of the national security state in ways that often go unnoticed – emphasizing the real difficulties of separating the liberal and illiberal dimensions of American constitutional culture.

Number of Pages in PDF File: 53

Keywords: national security, constitutional veneration, civil liberties, American exceptionalism, World War I, Progressivism

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Date posted: February 9, 2014 ; Last revised: July 3, 2015

Suggested Citation

Rana, Aziz, Constitutionalism and the Foundations of the Security State (February 7, 2014). 103 California Law Review 335 (2015); University of Texas School of Law, Rapoport Center Working Paper ; Cornell Legal Studies Research Paper No. 14-10. Available at SSRN: https://ssrn.com/abstract=2392666 or http://dx.doi.org/10.2139/ssrn.2392666

Contact Information

Aziz Rana (Contact Author)
Cornell Law School ( email )
Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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