Emergencies and Democratic Failure
Eric A. Posner
University of Chicago - Law School
Harvard Law School
Virginia Law Review, Vol. 92, p. 1091, 2006
U of Chicago, Public Law Working Paper No. 104
U Chicago Law & Economics, Olin Working Paper No. 258
Critics of emergency measures such as the U.S. government's response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Products framework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.
Number of Pages in PDF File: 55
Keywords: Emergencies, democracy, civil liberties, judicial review, terrorism, national securityAccepted Paper Series
Date posted: August 31, 2005
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