Real History Lisa, read RFK assassination on MSNBC this morning & your two links (wow). The Flag does seem to carry more meaning and weight than the Constitution in the political sphere. I'm thinking it works like a form of shorthand... like it's supposed to "stand in" for something. Am I wrong in thinking the Flag is a "coded" symbol? Trying to find a connection googled up Neo-Tribalism, Dunbar's number, Tribalism and Politics & American Democracy - why it SUCKS! (checking Zandar1's Global No-Confidence Vote series earlier, read: Race, Politics, and Everything: Three Little Words, mentioning "threatened tribalism" & eureka moment about US VERSUS THEM). Maybe the RFK-Tribal connection I'm trying to see involves RFK changing tribes, changing allegiances?

Paul Kahn's (who teaches constitutional & international law) War Powers and the Millennium (HTML|PDF), doesn't address "tribalism" directly, but I think he touches on some of the issues.

We live with an eighteenth century constitution in a twenty-first century world... We cannot say that the courts must continually adjust the Constitution to contemporary political and moral realities, any more than we can say that they must insist on a changeless constitution. We cannot say this because we harbor too many divisions over our own principles.
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We have no neutral way out of these conflicts over the path of the law because there is no line separating these disagreements over the content of the law from deeper conflicts over the nature of the rule of law itself. Our conflicts go directly to the place and meaning of law in our common life. For example, those who hold to an originalist view of constitutionalism argue from a vision of law that is deeply bound up with realizing a common meaning across generations. They understand the duties and meaning of citizenship within a legal framework that puts at its foundation the idea of maintaining the achievements of earlier generations and transmitting them to the future. They thrill to Lincoln's Gettysburg Address where he spoke of the achievement of the founding fathers and of the present as a test of endurance for the children of that generation; they read Burke on political culture as a project in the intergenerational transmission of meanings.6 Others, however, see this as rule by the dead hand of the past. They thrill to the ideas of populist democracy. Still others think of our law as the positive expression of a moral vision of rights, and of legal interpretation as the effort to realize the full meaning of such norms as equality, liberty, and due process.7

If this is true, we are not going to make much progress in understanding the constitutional provisions establishing Congress's war powers simply by adopting one or another interpretive stance. As in most of constitutional law, there is no neutral ground. Instead, there are multiple paths leading to multiple meanings. We cannot expect agreement, when in fact we are proceeding on principles of interpretation that are themselves deeply controverted. We should be clear on just how great our principled disagreements in this area are. We are at that point in our constitutional deliberations where the often repeated warning that the Constitution "is not a suicide pact"8 confronts an equal and opposite warning that "[e]xtraordinary conditions do not create or enlarge constitutional power."9 We are treading very close to ultimate values: values of national survival, on the one hand, and of the meaning of the American political order as a community under law, on the other. With such large stakes, there is a tendency to yield to intuition and moral sentiment. At that point, conflict threatens to become irresolvable.

This is from Max Weber's Politics As A Vocation:

In the past, the most varied institutions--beginning with the sib--have known the use of physical force as quite normal. Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that 'territory' is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the 'right' to use violence. Hence, 'politics' for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.

This corresponds essentially to ordinary usage. When a question is said to be a 'political' question, when a cabinet minister or an official is said to be a 'political' official, or when a decision is said to be 'politically' determined, what is always meant is that interests in the distribution, maintenance, or transfer of power are decisive for answering the questions and determining the decision or the official's sphere of activity. He who is active in politics strives for power either as a means in serving other aims, ideal or egoistic, or as 'power for power's sake,' that is, in order to enjoy the prestige-feeling that power gives.

Like the political institutions historically preceding it, the state is a relation of men dominating men, a relation supported by means of legitimate (i.e. considered to be legitimate) violence. If the state is to exist, the dominated must obey the authority claimed by the powers that be. When and why do men obey? Upon what inner justifications and upon what external means does this domination rest?

Kahn's paper also references Elaine Scarry's, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms. This is from her essay, Citizenship in Emergency:

When the U.S. Constitution was completed it had two provisions for ensuring that decisions about war-making were distributed rather than concentrated. The first was the provision for a congressional declaration of war--an open debate in both the House and the Senate involving what would today be 535 men and women. The second was a major clause of the Bill of Rights--the Second Amendment right to bear arms--which rejected a standing executive army (an army at the personal disposal of president or king) in favor of a militia, a citizen's army distributed across all ages, geography, and social class of men.25 Democracy, it was argued, was impossible without a distributed militia: self-governance was perceived to be logically impossible without self-defense (exactly what do you "self-govern" if you have ceded the governing of your own body and life to someone else?).

sorry for the long quotes!

That is brilliant - I hope your friend gets lots of publicity.