Happy Friday! Below are the first two paragraphs of my latest paper “Domestic Constitutional Violence,” which is now available here via SSRN (the footnotes are below the fold):
“We often associate violence with extra-legal behavior[1] or with the dark side of law enforcement.[2] But violence has also played a pivotal role in our nation’s history and in the development of constitutional law. Simply put, our government has often resorted to acts of “constitutional violence”[3] to effectuate major constitutional change. Consider the stain of slavery. From a practical perspective, it was not the formal enactment of the Thirteenth Amendment that eradicated this peculiar institution. Rather, it was the blood spilled in such costly battles as Bull Run, Chickamauga, and Gettysburg that settled the festering constitutional question of slavery once and for all.[4] The same logic applies to school desegregation and the Little Rock Crisis of 1957. From a practical perspective, it was not the Supreme Court’s landmark decision in Cooper v. Aaron[5] that diffused the crisis or that ended school desegregation. Rather, it was President Dwight D. Eisenhower’s reluctant decision to send paratroopers of the 101st “Screaming Eagles” Airborne Division into Arkansas in 1957, a full year before the Supreme Court’s decision in Cooper, that desegregated the iconic Central High School and changed the course of U.S. civil rights .[6]
“In short, momentous constitutional questions are often decided not through ordinary legal channels but by force. But the use of force to effectuate constitutional change poses a constitutional puzzle. In particular, what is the relation between violence and the overall legal system of government created by the Constitution? After all, the federal courts and the Congress do not have their own armies to enforce their decisions or laws. So, as a matter of constitutional first principles, one could argue that a president is acting “within” the law when he uses military force to enforce a law or court order, but at the same time, isn’t the use of military force totally antithetical to the idea of a republican constitution?[7] If so, is there any viable solution to this logical paradox? Eisenhower’s fateful decision to resort to military force during the Little Rock Crisis thus poses a constitutional paradox.[8] Was his use of force itself lawful, and if so, what are the outer limits to this power?”
prior probability 