...their resolution are ultimately more about politics than law (in the current episode, low politics rather than high, lacking the attributes of “adult conversation” — Levinson’s term — that has accompanied historical analogues). Kevin offers up the survival rule as the more analytic measure of extra-constitutional action; Paulsen works from the same sort of premise, though on a much less exacting basis, drawing straight
lines between the Emancipation Proclamation and the Bush Administration’s terrorist detention policies by way of legitimizing the latter. The exchange between Paulsen on the one hand...