Originalism and Emergencies: A Reply to Lawson
Eric A. Posner
University of Chicago - Law School
Harvard Law School
Boston University Law Review, 2007
Harvard Public Law Working Paper No. 07-04
U of Chicago, Public Law Working Paper No. 163
Professor Gary Lawson has written an illuminating response to our book, Terror in the Balance: "Security, Liberty and the Courts" (Oxford University Press 2007). Lawson's main thesis is that the original understanding of the Constitution supports what we call the judicial deference thesis - that courts should defer to the executive and legislative branches during emergencies. In this brief reply, we offer three claims. First, we express skepticism about whether there can be an overlapping consensus between originalists and nonoriginalists about judicial deference in times of crisis. Second, we affirmatively argue that if originalist adjudication is at all justified by reference to its consequences, then judges should be less originalist in emergencies than in normal times. Third, judges should also be less Burkean or traditionalist during emergencies than in normal times.
Number of Pages in PDF File: 10Accepted Paper Series
Date posted: April 3, 2007
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