Reviewing the Constitutional War over Free Speech, Post-9/11

As the ninth anniversary of 9/11 approaches, we are again evaluating how our country has changed for the better or worse since that day. Following that trend, Concurring Opinions laid down a detailed assessment of John Denvir’s Freeing Speech: The Constitutional War over National Security.

If the volume of political dissent alone were the measure of a healthy democracy, then America has been thriving since 9/11.  The roaring avalanche of critical perspectives on the “war on terrorism”— propelled by thousands of books, law review and political journal essays, and newspaper and magazine articles – might suggest that the state of our political discourse and of the constitutional order that it supports is fundamentally sound.  Ironically, of course, this outpouring aims largely to prove the opposite: that unfounded claims of inherent executive authority to preserve national security imperil our free-speech system and tip the delicate balance of our tri-partite federal governmental powers.

To this resounding chorus of critique, John Denvir, the Research Professor of Constitutional Policy at the University of San Francisco School of Law, now adds his voice.  Freeing Speech introduces Denvir’s concept of a “National Security Presidency” (NSP), explores several interrelated factors that have given rise to the phenomenon, and suggests political and judicial reforms as counter-forces to the excesses of the NSP.  In all of this, Denvir hopes to contribute to a revitalization of democratic debate, a reanimation of political activism, a reaffirmation of constitutional safeguards – and, ultimately, to the reactivation of legislative and judicial checks on presidential overreaching in the name of national security.

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