American Law in the New Global Conflict

Abstract

International conflict has profoundly influenced American law. It has shaped the scope of our civil rights and civil liberties, transformed the balance of our constitutional institutions, and fostered shifts in our legal culture. This Article is the first to comprehensively assess how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed connections to a geopolitical adversary. But there has also been a modest expansion in rights where affected constituencies have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach and increased interbranch and interparty consensus. Legal-culturally, it has evinced a decline in legal rationality resulting from the return of familiar ideological and nationalistic frames. Although these developments do not rival in magnitude the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it.

Keywords: Constitutional law, foreign relations law, national security law, U.S.-China relations, civil rights, civil liberties, separation of powers