The President's Power to Detain 'Enemy Combatants': Modern Lessons from Mr. Madison's Forgotten War

60 Pages Posted: 19 Nov 2003  

Ingrid B. Wuerth

Vanderbilt University - Law School

Abstract

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.

Keywords: Enemy Combatants, Hamdi, Padilla, Ex parte Quirin, International Law, War of 1812, Commander in Chief, Constitutional Law, Law of War

JEL Classification: K33

Suggested Citation

Wuerth, Ingrid B., The President's Power to Detain 'Enemy Combatants': Modern Lessons from Mr. Madison's Forgotten War. Northwestern University Law Review, Vol. 98, 2004. Available at SSRN: https://ssrn.com/abstract=467344 or http://dx.doi.org/10.2139/ssrn.467344

Ingrid B. Wuerth (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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