The war on terror threatened the interdependency between nation-state sovereignty and the rule of law. Parliamentary democracies like Great Britain and the United States generally maintained their legitimacy by claiming that law rules over particular leaders or interests. Victorian jurist Albert Venn Dicey articulated a distinctive rule of law, in part to defend British imperialism. Dicey's rule of law derived from the English unwritten constitution and common law heritage. In America the rule of law was inseparable from what legal historian Willard Hurst called the constitutional ideal that all power should be accountable to power outside of itself. Whatever its constitutional form, the rule of law was vulnerable during wartime emergencies as nation-state authorities demanded unilateral power. Professor David Dyzenhaus's fine paper explores the tension between the rule of law and emergency war powers mobilized to preserve national survival, the ultimate test of constitutional sovereignty. Dyzenhaus employs the U.S. Supreme Court's Civil War-era decision of Ex parte Milligan and Dicey's rule of law to address this tension in controversial U.S. cases arising from the Bush administration's war on terror.

In several historical contexts Dyzenhaus offers Milligan as the source for a legal theory defending the rule of law. He frames the discussion of Milligan relying primarily on the facts involving the president's assertion of extraordinary war powers in post–Civil War Indiana. His discussion of Dicey includes passing reference to an imperial “small war” the British fought against South African Boers during the turn of the nineteenth to the twentieth century. President George W. Bush's conduct of the war on terror receives the least historical context.