Category Archives: The Constitution

The Militia Clauses and the Original War Powers

Today, writes Ben Daus-Haberle, the Militia Clauses of the Constitution lead a curious double life. The Second Amendment’s preamble stars in gun rights debates, but when the conversation shifts to the War Powers, these Clauses drop almost entirely from view. The result is a War Powers literature strikingly silent about the Militia Clauses. Yet the founders regarded the militia as a key military resource. To them, the militia was the “great Bulwark of our Liberties and independence,” and they structured the Constitution with this bulwark in mind.

This paper returns the Militia Clauses to view to explore how they shaped the War Powers. While scholars have occasionally considered the clauses in isolation, the full dimensions of this regime only become visible when the clauses are examined intratextually—that is, in dialogue with each other and the rest of the constitutional text.

Doing so both illuminates the original functioning of the War Powers and prevents misunderstandings that can arise when individual clauses are considered in isolation.

Introduction to the Special Online Issue on the 2021 Capitol Insurrection

January 6, 2021, was supposed to be the day that Joe Biden became the congressionally certified winner of the 2020 presidential election. Instead, January 6 will be remembered as the day a violent mob stormed the U.S. Capitol. As the mob easily overcame inadequate security, members of Congress and staff feared for their lives.

By any measure, January 6 was a day like no other in American history. The assault on the Capitol attempted to obstruct and thwart one of the fundamentals of our democracy – the peaceful transition of leadership from one elected President to the next. There can be no more direct and significant threat to our national security.

The unprecedented assault on our democracy and the rule of law prompted JNSLP to reach out to our distinguished editorial board. We asked that some of them prepare succinct reactions to January 6 and its significance for our nation. The response from the board was gratifying.

The 10 essays that follow represent a diverse range of opinions and analysis, highly appropriate for an interdisciplinary board of scholars and practitioners. What the essays share, however, is a uniform repulsion at the events of January 6 and the direct threat to our governance that the mob represented.

William C. Banks
Editor-in-Chief
January 25, 2021

The Attack on the Capitol Calls for a Measured Response

By Emily Berman

There are many indisputable facts about violent and deadly incursion into the Capitol building on January 6th. It is beyond debate that the fiasco included multiple criminal acts. Nor is there any question that it represents a colossal security failure on the part of those whose mission is to safeguard the premises and the people inside.

Finally, as many observers have noted, the differential treatment afforded to the largely White crowd of President Donald Trump’s supporters compared to the Black Lives Matter protestors who took to the streets this summer to protest acts of police violence against Black individuals was, to say the least, stark. Each of these facts—the criminal acts, the security failure, and the differential treatment afforded to those protesting—demand thorough investigation and a vigorous response. But that response need not—indeed must not—include measures that ultimately repress peaceful protest and restrict the right to assembly for Americans of all political stripes …