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The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …