The Rhetoric of Necessity (or, Sanford Levinson's Pinteresque Conversation)
28 Pages Posted: 21 Sep 2006
This short Comment is a response to Sanford Levinson's Article "Constitutional Norms in a State of Permanent Emergency." In the Article, Professor Levinson confesses that he finds it difficult to criticize President Bush's authoritarian disregard for the Constitution when many of the Presidents he admires, Lincoln foremost among them, also acted extraconstitutionally. The Comment attempts to provide Professor Levinson with the "adequate leverage point" that he seeks, what it calls the "survival rule." Drawn from the work of political theorists as different as Madison, Schmitt, and Clinton Rossiter, the survival rule posits that, insofar as Presidents have the power to act extraconstitutionally, they may do so only when such action is necessary to preserve the constitutional order itself. If that rule is sound, the Comment argues, it is possible to offer a principled distinction between, for example, Bush's authorization of torture and Lincoln's suspension of habeas corpus: Lincoln's extraconstitutional action was necessary to save the Republic, while Bush's authorization of torture clearly wasn't. The Comment then concludes by showing how two prominent constitutional scholars who defend Presidential authority to act extraconstitutionally, Michael Stokes Paulsen and Oren Gross, claim to embrace the survival rule but actually dilute it far beyond what is reasonable.
Keywords: Constitution, constitutional law, emergency powers, extraconstitutional, war powers, presidental authority, Levinson, Lincoln, Schmitt, Rossiter, Paulsen, Gross
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