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New Yale Scholarship: The Anti-Emergency Constitution
Posted by James Grimmelmann on Friday, August 13 @ 00:45:00 EDT Scholarship
Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 YALE L.J. 1801 (2004).

(Abstract prepared by James Grimmelmann)

The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution--is upon us.

By no means the first of these commentators but by far the most ambitious has been, not surprisingly, Bruce Ackerman, who brings to the task his special gift for provokery. But it is not always easy to grasp more than the vaguest contours of Ackerman's scheme. For example, the content of the powers granted to executive officials by a declaration of emergency seems to be left to improvisation by unspecified institutions and at unspecified times (whether by Congress ex ante, or by Congress at the time of the emergency's invocation, or by the emergency-invoking Executive at that time).

Our first concern is pragmatic: Is Ackerman’s "emergency constitution" a remotely plausible way to organize government action? Second, we worry about the enormity of what proposals like Ackerman’s would have us give up in order to create bracketed times and spaces within which we might do terrible things without thereby becoming terrible people. Third, we call attention to the role of memory--or rather, of amnesia. Professor Ackerman would treat the state of emergency as discontinuous from and fundamentally outside of ordinary constitutional law and, therefore, as largely irrelevant, except for cleanup matters, to constitutional law after the emergency ceases. The memory of how we once rationalized what we later take to be a wrong, sometimes a great and terrible wrong, contributes to constitutional law no less than does the memory of how we have in the past kept our affirmative commitments to do right.

 
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Re: The Anti-Emergency Constitution (Score: 0)
by Anonymous on Thursday, August 19 @ 00:08:24 EDT
"sheer necessity"

Um, yeah. Right. I feel no further need to read about these proposals.


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