Emergencies and Democratic Failure

55 Pages Posted: 31 Aug 2005

See all articles by Eric A. Posner

Eric A. Posner

University of Chicago - Law School

Adrian Vermeule

Harvard Law School


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.

Keywords: Emergencies, democracy, civil liberties, judicial review, terrorism, national security

Suggested Citation

Posner, Eric A. and Vermeule, Adrian, Emergencies and Democratic Failure. 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. Available at SSRN: https://ssrn.com/abstract=791725

Eric A. Posner

University of Chicago - Law School ( email )

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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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