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Document Type

Article

Publication Date

Summer 2015

Publication Citation

90 Indiana Law Journal 935 (2015)

Abstract

“We are a nation of laws, not men.” This motto—made famous by the Supreme Court case Marbury v. Madison1—has existed since the founding of the United States. This maxim embodies the sentiment that, in order to prevent tyranny, citizens should be governed by fixed law rather than the whims of a dictator. In his decision, Chief Justice John Marshall did not qualify his remarks by saying, “we are a nation of laws, except in time of war.” Indeed with the modern U.S. military, Cicero’s observation that “[l]aws are inoperative in war” has never been further from the truth. Never before has the national security community been so influenced by, and controlled by, an increasingly complex national-security legal system.3 In many ways this is a good trend, but it, like a pendulum, can swing too far. This Article attempts to assess the current situation and evaluate whether we have swung too far into “overlawyering.”