Accommodating Emergencies

34 Pages Posted: 16 Sep 2003

See all articles by Eric A. Posner

Eric A. Posner

University of Chicago - Law School

Adrian Vermeule

Harvard Law School

Date Written: September 2003

Abstract

There are two main views about the proper role of the Constitution during national emergencies. We label them the "accommodation" view and the "strict" view. The accommodation view holds that the Constitution should be relaxed or suspended during an emergency. The strict view holds that constitutional rules are not, and should not be, relaxed during an emergency. The Constitution should be enforced "strictly" so that both civil liberties and government interests, such as national security, can be appropriately balanced.

In this paper we critique the strict view. Defenders of the strict view have proposed two major rationales for their position. The first is institutional: emergencies work like a ratchet, so that constitutional protections are reduced in emergencies, while after the emergency is over the enhancement of constitutional powers is either maintained, or not fully eliminated. The second rationale is psychological: during an emergency, people panic, and when they panic they support policies that are unwise and excessive. Relaxation of constitutional protections would give free rein to the panicked reaction, when what is needed is constraint.

The ratchet theory and the panic theory have become fixed points in the debate about emergency powers, yet have escaped rigorous analysis. As we will show, both theories suffer from insuperable conceptual, normative, and empirical difficulties. The ratchet theory lacks a mechanism that permits constitutional powers to rise and prevents them from falling, and makes implausible assumptions about the rationality of individuals who consent to constitutional changes during emergencies. The panic theory assumes that people can, while panicked, get outside themselves and constrain their own fear. Although people and officials panic, we have found little evidence that constitutions or other laws or institutions can control the panic, and cause people to lose their fear, or else choose, while panicked, laws that they would choose if they were not panicked. Finally, defenders of either theory do not examine their normative premises sufficiently: it is not clear that panics and ratchets, if they occur, are bad.

Keywords: constitutional law, national emergencies, "ratchet theory," "panic theory"

Suggested Citation

Posner, Eric A. and Vermeule, Adrian, Accommodating Emergencies (September 2003). U of Chicago, Public Law Working Paper No. 48. Available at SSRN: https://ssrn.com/abstract=441343 or http://dx.doi.org/10.2139/ssrn.441343

Eric A. Posner

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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