Domestic Constitutional Violence

18 Pages Posted: 24 Jan 2019 Last revised: 28 May 2019

See all articles by F. E. Guerra-Pujol

F. E. Guerra-Pujol

University of Central Florida; Pontifical Catholic University of Puerto Rico

Date Written: May 26, 2019

Abstract

For this symposium issue of the University of Arkansas at Little Rock Law Review, this article reframes the 1957 Little Rock Crisis as a paradigm case of "domestic constitutional violence," i.e. the power and duty of the president to use military force to preserve, protect, and defend the Constitution. First, the paper revisits two obscure Little Rock cases that unsuccessfully attempted to challenge the legality of President Eisenhower's decision to send paratroopers to Arkansas to desegregate Central High School. Although neither case reached the U.S. Supreme Court, they pose important questions about the legality of domestic constitutional violence in disputes over the meaning of the Constitution. Next, the article explores some potential sources of law authorizing the use of constitutional violence. In brief, there is an over 200-year body of law regulating the use of domestic constitutional violence. On the one hand, the Constitution anticipates the possibility of "domestic Violence"; on the other, the Congress has delegated a specific set of powers to the president to deal with certain classes of domestic dangers. Lastly, the paper concludes by proposing that we call this body of law "the laws of constitutional necessity."

Keywords: Cooper v. Aaron, Little Rock Crisis, Necessity

JEL Classification: H77, K42

Suggested Citation

Guerra-Pujol, F. E., Domestic Constitutional Violence (May 26, 2019). UA Little Rock Law Review, Vol. 41 (2019), pp. 211-232.. Available at SSRN: https://ssrn.com/abstract=3317895

F. E. Guerra-Pujol (Contact Author)

University of Central Florida ( email )

Orlando, FL 32816
United States

HOME PAGE: http://www.priorprobability.com

Pontifical Catholic University of Puerto Rico ( email )

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