34 Pages Posted: 5 Jul 2007
Justice Holmes's judicial and extrajudicial writings implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies. Its main elements are that (1) the existence and duration of an emergency are questions of fact; (2) during emergencies courts should not practice judicial minimalism or the passive virtues; (3) during emergencies there are no non-derogable rights - government can do anything if circumstances warrant; (4) the main checks on governmental action during emergencies are that (a) legislative limitation of executive powers trumps, where the political branches disagree; and (b) judges engage in ex post sunsetting, once an emergency has in fact ended, by declaring the emergency terminated and rescinding the government's emergency powers. I then offer a broader evaluation of Holmes's views, suggesting that the epistemic theory of emergencies is the best version of a common-law strategy for regulating government action during emergencies. Throughout, the enterprise is not biographical, historical or doctrinal; it is theoretical.
Keywords: constitutional law, national security law, emergencies, Holmes and/or Justice Holmes
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