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The Theoretical Constitutional Shape (and Shaping) of American National Security Law

The theoretical shape of the American national security system derives from the interaction of several constitutive dimensions, the most notable of which is doctrine of the president’s primacy to fashion national security principles. In this way, form and function in the American national security legal system is best understood as flowing from presidential decision and discretion. Three overarching philosophical problems of judicial review of the president’s national security decisionmaking entail the problem of knowledge, the problem of conduct, and the problem of governance. In turn, to flesh out and better understand these problems in concrete cases, the Supreme Court should be cognizant of the various aesthetics of national security law and the multiple potential types of national security arguments. This Article argues that in resolving problems of American national security law, the Court should refrain from citing foreign judicial precedent and should rely exclusively on American law and precedent for four reasons: (1) ethos and American identity, (2) effective dispute resolution, (3) meaningful agenda-setting and constitutional dialogue, and (4) judicial legitimacy. Nevertheless, the Court should be cautiously open to non-precedential learning from transnational ideas regarding national security issues.