Originalism and Emergencies: A Reply to Lawson

10 Pages Posted: 3 Apr 2007

See all articles by Eric A. Posner

Eric A. Posner

University of Chicago - Law School

Adrian Vermeule

Harvard Law School

Abstract

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.

Suggested Citation

Posner, Eric A. and Vermeule, Adrian, Originalism and Emergencies: A Reply to Lawson. Boston University Law Review, 2007; Harvard Public Law Working Paper No. 07-04; U of Chicago, Public Law Working Paper No. 163. Available at SSRN: https://ssrn.com/abstract=977546

Eric A. Posner (Contact Author)

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

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
244
rank
122,378
Abstract Views
1,808
PlumX Metrics