Ben Kleinerman, whose work I discussed here, was kind enough to provide us with an extended reflection on how to apply the Civil War analogy to our current affairs. His piece is replete with interesting observations about necessity and the limits of law, and thus can productively be read in conjunction with Harvey C. Mansfield, Jr.’s essay, discussed here.
[W]e must seek a constitutional framework within the new ordinary politics, characterized by a permanent threat from asymmetric warfare, that preserves the executive discretionary powers necessary to secure us from such threats without either giving up too many rights for the sake of such security or allowing the discretionary activity to descend into a legal right to take any actions the president chooses. And I submit that we can find such a constitutional framework precisely by thinking of our Constitution as permitting a discretionary executive branch, watched over by a Congress that asks the question not whether the President has violated the law but whether the President has acted as necessity demands and no further. Such a framework empowers the President to take actions necessary for our preservation while preventing the abuse of such powers. It also prevents the legalization of such powers, a legalization with which we would not be comfortable were it not for the threat to our security.