For Professor Andrew Kent, research and legal practice compose a solid body of work.
The United States Constitution has historically played favorites. In times of war, enemies—whether they were captured soldiers or innocent noncitizens residing in a nation at war with the United States—did not get constitutional protections. That included, for example, residents of the Confederate States during the Civil War, and civilians and soldiers in territories the United States seized in the Spanish-American War of 1898.
Some lawyers today use these past episodes as precedents to deny rights to Guantanamo detainees and U.S. citizens targeted abroad by drone strikes, but they are too hung up on the past, says Fordham Law Professor Andrew Kent. His research makes it clear that, though the Constitution wasn’t built to protect enemies of the state or people outside the United States, it is gradually being reinterpreted in more recent years to do just that. At least, it’s headed in that direction.
“People who favor an expansive view of the Constitution’s reach in protecting people in all contexts, including armed conflict, aren’t always pleased when I point out that the Constitution had a very different view when it was written,” he says. “But that doesn’t mean the Constitution doesn’t and shouldn’t extend its protections today. History doesn’t control us. The division between us versus them is breaking down. It’s not gone entirely, but it’s softening. And the process of extending constitutional protections to noncitizens outside the United States, and even into war zones, is accelerating.”
Kent was a student of war and national security law long before anyone formally taught him the subject. He focused on politics, economics, and history at Harvard College and, after graduation, went on to a job in political consulting that lasted long enough for him to realize he had no love for “the grubby work of backroom politics,” as he describes it.
He turned instead to the more theoretical side of political affairs at Yale Law School. After graduation, Kent worked at two law firms, Sullivan & Cromwell and WilmerHale, but in the end, white-collar criminal defense and complex civil litigation didn’t hold as much interest as constitutional law and foreign affairs. After serving two years as a Harvard Law Climenko Fellow, he came to Fordham in 2007. At Fordham, Kent has had the ability to explore his broad interests, ranging from foreign relations and national security law and constitutional law to the legal history of the Civil War and Reconstruction, legal ethics and professional responsibility, federal courts and jurisdiction, and appellate litigation.
Much of Kent’s scholarship has focused on constitutional rights in the foreign affairs and security contexts. He has written several papers on the Constitution’s evolving domain of protection: changes over time in when, where, and for whom constitutional protections are available. His capstone to this theme, “Disappearing Legal Black Holes and Converging Domains” for the Columbia Law Review last year, offers an incisive summary on the subject. The article shows that, while the United States reserved the Constitution for its citizens and peaceful noncitizen residents, the country began to reassess its position after World War II and expand constitutional protections more globally.
Since the Cold War, courts have reinterpreted the Constitution to offer its protection to people who never received it before. Kent says that several complicated factors have inspired this development, but one of the biggest is that today’s courts are not as deferential to the wartime desires of Congress and the president as they were in the past. Instead, they are more sympathetic to values underlying the international human rights movement.
“The idea that people don’t have inherent human rights just because they aren’t members of our polity is increasingly discredited,” says Kent.
Digging into national security law has revealed to Kent some unexpected insights. For instance, he uncovered fresh research deflating exaggerated claims about the military service of Edward Douglass White, who fought for the Confederacy in the Civil War (as a guerrilla fighter in the war’s waning days) and went on to become chief justice of the United States in 1910. In “The Rebel Soldier Who Became Chief Justice of the United States,” published in this year’s American Journal of Legal History, Kent explores how the former Confederate came to promote expanded federal powers over the objections of his fellow Democrats. “White fought for the South and, like many from his region, was deeply skeptical of national government power as a young man. But years later, he’s on the Supreme Court bench with a deeply nationalist view of a strong federal government—the government he had rebelled against,” says Kent.
For all his work on the theory and history of law, Kent retains a strong interest in legal practice and close connections to the bar. He worked at a criminal defense firm in law school and did a postgraduate fellowship at Sullivan & Cromwell in which, soon after law school, he helped free a man wrongfully convicted of murder and litigated First Amendment protections for Muslim inmates.
Kent currently provides appellate representation to the indigent as a member of the Pro Bono Panel of the U.S. Court of Appeals for the Second Circuit and has worked on other litigation in an expert witness capacity. In 2014-2015, Kent served as senior counsel to the solicitor general of New York, in the Office of the Attorney General. He represented New York in a range of appellate cases, including one in which the U.S. Court of Appeals for the Second Circuit upheld vaccination of schoolchildren against a First Amendment challenge. This year, Kent joined several other law professors to submit an amicus brief to the Supreme Court concerning 14th Amendment citizenship in U.S. territories. His articles have been cited by federal courts on a range of issues, and he recently testified in Congress concerning constitutional issues raised by a bankruptcy bill for Puerto Rico.
Working for the attorney general by day and teaching his Fordham classes at night has slowed neither Kent’s steady publishing pace nor the academy’s growing interest in what he has to say. Later this year, he and Professor Julian Mortensen of Michigan Law will publish a chapter in The Cambridge Companion to the U.S. Constitution, exploring how presidents have gained increasing authority to respond to national security events on their own without congressional approval. He is also at work on pieces about economic sanctions as a national security issue, Congress’ power in the foreign affairs arena, and a follow-up to his Chief Justice White paper that details that complicated man’s political activities during the bloody and contested period of Reconstruction in Louisiana.
Never forgetting how he had to teach himself about national security law before it was so prominent a topic, Kent is not surprised that the post-9/11 world has caught up with his long-term obsession.
“These issues of national security and foreign relations have such large legal dimensions now, from how our countries relate to each other to how our military and law enforcement grapple with new laws, statutes, and rules,” he says. “There are always new developments, and there is more work for lawyers to do in these areas than ever before. Maybe this has always been true, but it certainly feels to me like an exciting time to be a law professor and to be a practicing lawyer.”
Hear Andrew Kent give testimony at a recent congressional hearing at law.fordham.edu/aktestimony.
