Democratic Failure and Emergencies: Myth or Reality?
James M. McDonald
University of Tulsa College of Law
Virginia Law Review, Vol. 93, p. 1785, 2007
University of Tulsa Legal Studies Research Paper No. 2009-02
The long-running debate about the ability of a democratic government to respond to emergencies has assumed new significance as scholars, judges, and government officials develop new arguments to respond to the challenges presented by the twenty-first century and the "War on Terror."
Traditional emergency-politics theorists explain democratic government during emergency with the "democratic failure theory." But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have challenged the "democratic failure" theory, arguing that, because emergencies affect no systemic change in the structure of voting and representation, democratic government functions with equal facility during emergencies as during normal times.
This Note, while ambivalent about a broad application of the traditionalists' democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. National security concerns played a part in the decision, to be sure, but this Note argues that the primary impetus behind the internment came from an anti-Japanese West-Coast coalition's successful exploitation of the democratic failure caused by the emergency of World War II. The coalition had long sought to exclude individuals of Japanese descent (and the Chinese before them), but before World War II, those efforts lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition harnessed the political support necessary to achieve its exclusionary goal.
Number of Pages in PDF File: 44Accepted Paper Series
Date posted: January 18, 2008 ; Last revised: February 5, 2009
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