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Freeing SpeechThe Constitutional War over National Security$
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John Denvir

Print publication date: 2010

Print ISBN-13: 9780814720141

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814720141.001.0001

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(p.129) 6 The Supreme Court

(p.129) 6 The Supreme Court

(p.129) 6 The Supreme Court
Freeing Speech

John Denvir

NYU Press

This chapter examines how the Supreme Court has responded to national security issues. More specifically, it considers two failures of the Supreme Court to fulfill its duty to “say what the law is”: its refusal to unequivocally reject the National Security Presidency's claim that the president has independent power to initiate offensive military operations without congressional consent, and its use of the technical doctrine of standing to prevent courts from ruling on cases that raise important statutory and constitutional issues. It also cites the case Youngstown Sheet and Tube v. Sawyer and its importance to the constitutional war over national security. Finally, it highlights the problematic nature of presidential power and challenges the notion that every court ruling for individual rights is a defeat for democracy because presidents and legislators are elected while judges are not.

Keywords:   national security, Supreme Court, National Security Presidency, military operations, doctrine of standing, Youngstown Sheet and Tube v. Sawyer, presidential power, democracy

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