Here’s an interesting window into the declining salience of national security legal issues in American public life and discourse: The New York Times has a Room for Debate discussion going on right now entitled “Another Stab at the U.S. Constitution.” It is focused on the question: “As the United States prepares to mark the 225th anniversary of its Constitution, we have the benefit of hindsight that the framers lacked. What should be omitted, clarified or added?” Of ten entries so far, try to guess how many involve civil liberties or executive power in wartime.
Answer: It sort of depends how flexibly you count, but the best answer is probably zero.
The closest candidate is a Jenny Martinez piece entitled, “Acknowledge That Treaties are Law,” but this piece is really more Medellin than national security issues; it doesn’t even mention issues like the Geneva Conventions or the treaty issues that used to so concern us. Melynda Price wants to “Get Rid of the Right to Bear Arms,” but her argument is about domestic gun violence. Most of the debate isn’t even close: federalism, rewriting the First Amendment, making naturalized citizens eligible for the presidency—that sort of thing.
It’s hard to prove, but I don’t believe that if this debate happened five years ago, we wouldn’t have seen someone making an argument about war powers, about reining in the imperial presidency, about making clear that habeas follows the U.S. military wherever it goes, or about banning military commissions. Or about something. it seems like a sign that the controversies have faded that national security legal issues are not even in the top ten any more. I’m not sure whether that’s a good thing—a sign of increasing consensus—or a bad thing—a sign of amnesia and denial—but it sure is different.