Words Matter: The Rhetoric of National Security and the Reality of Individual Rights

(Excerpt) While the meanings of words can be flexible or contested, they are not infinitely pliable. These limits on words and their uses help define the outer bounds of legitimate state action. However, even the written law is only as stable as our interpretation of what those words mean. There is the risk that a deliberate and persistent misuse of words by states and other actors can eventually change our understanding of the law it.

Some of my work has analyzed the use of words and phrases such as “self-determination,” “sovereignty,” and “secession.” But, in this Essay, I focus on current arguments over the use in relation to U.S. domestic law of words and phrases such as “emergency,” “national security,” “invasion,” “predatory incursion,” and “war.” These words are frequently invoked by Presidents. Although courts have given significant deference to how Presidents describe situations, a tradition of deference does not mean that there is no role for Congress or the Courts—or for the public. To the contrary, it is crucial for a republic to find shared meaning— and shared limits of meaning—of words that are central to governance.