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.