Update (1/17): The paper is now posted on SSRN.
That is the title of my most recent scholarly paper, which I am currently in the process of editing and which will be published in a symposium issue of the Arkansas Law Review this spring. I will be posting an open-access draft of my paper on SSRN (and on this blog) later this week, but in the meantime, here is my abstract:
My paper 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, my 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, my 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 itself 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, I conclude by proposing that we call this body of law “the laws of national necessity.”