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PLEASE NOTE The following selection from The Yale Law Journal is not paginated and should not be used for citation purposes A paginated version of the selection may be purchased from The Yale Law Journal This selection from The Yale Law Journal is not paginated and should not be used for citation purposes The Yale Law Journal Vol 112 Article Chaos and Rules Should Responses to Violent Crises Always Be Constitutional Oren Gross CONTENTS I INTRODUCTION II DEMOCRACY AND STATES OF EMERGENCY A TENSION OF TRAGIC DIMENSIONS A Action over Deliberation B Judicial Deference C Public Support Temporal Duration and Otherness D Perceptions and Misperceptions Associate Professor University of Minnesota Law School Parts of this Article were prepared while I was a visiting scholar at the Law and Public Affairs Program at Princeton University and a visiting professor at the Benjamin N Cardozo School of Law Earlier drafts were presented at the University of Baltimore Benjamin N Cardozo School of Law Cornell University the University of Minnesota and the University of Texas I have many to thank for taking the time to comment and suggest improvements to this Article I would especially like to thank Linda Bosniak Dale Carpenter David Dyzenhaus Christopher Eisgruber Dan Farber Sanford Levinson Lance Liebman David McGowan Fionnuala Ni Aolain Michael Paulsen Wilfred Prest Steven Ratner Fred Schauer William Scheuerman and Philip Weiser Finally my thanks to Anne Troy for her tireless research assistance If despite so much good advice this Article is neither better nor shorter it is only due to my own limitations This selection from The Yale Law Journal is not paginated and should not be used for citation purposes 2003 Chaos and Rules III KEEPING THE LAW ON OUR SIDE CONSTITUTIONAL MODELS OF EMERGENCY POWERS A The Business as Usual Model 1 It is imperative that the trains run on schedule 2 Challenges and Justifications a The Charge of Hypocrisy b Absolutism and Resistance i Constitutional Absolutism and Perfection ii A Strategy of Resistance iii Myths Symbolism and Ideals iv Slippery Slopes 3 Courage and Relevancy Ex parte Milligan B Models of Accommodation 1 Each crisis brings its word and deed a Interpretative Accommodation b Legislative Accommodation i Modifying Ordinary Laws ii Special Emergency Legislation c Executive Inherent Powers 2 Challenges and Justifications IV THE ASSUMPTION OF SEPARATION A Normalcy and Emergency The Discourse of Rule and Exception B Four Degrees of Separation 1 Sequencing and Temporal Distinctions Separating the Best and the Worst of Times 2 It s a Bad World out There I Spatial Distinctions 3 It s a Bad World out There II Domestic and Foreign Affairs 4 Communal Divisions Us vs Them C The Breakdown of the Normalcy Emergency Dichotomy 1 Normalization of the Extraordinary 2 Increasing Dosages 3 One Can Get Used to This 4 Persistence of Judicial Precedents 5 Structural and Institutional Changes V THE EXTRA LEGAL MEASURES MODEL A Ethic of Political Responsibility 1 Locke s Theory of the Prerogative Power This selection from The Yale Law Journal is not paginated and should not be used for citation purposes The Yale Law Journal Vol 112 2 Theory Searching for Moral Politicians 3 Practice Casting Behind Metaphysical Subtleties 4 Ex Post Ratification B Challenges and Justifications 1 A Nation Worth Saving 2 Acting upon Great Occasions a Warning You Are Now Entering an Emergency Zone Usual Categories of Judgment No Longer Apply b The Not So Obvious Case for Rule Departures i Crossing the Threshold and Giving Reasons for It ii Open and Informed Public Deliberation iii Precedents Hard Cases Make Bad Law VI CONCLUSION FAITH AND MICROSCOPES Books on constitutional law find little to say about emergency powers 1 W e urgently require new constitutional concepts to deal with the protection of civil liberties Otherwise a downward cycle threatens After each successful attack politicians will come up with repressive laws and promise greater security only to find that a different terrorist band manages to strike a few years later This disaster will in turn create a demand for even more repressive laws and on and on 2 I often wonder whether we do not rest our hopes too much upon constitutions upon laws and upon courts These are false hopes Liberty lies in the hearts of men and women when it dies there no constitution no law no court can save it no constitution no law no court can even do much to help it While it lies there it needs no constitution no law no court to save it 3 I INTRODUCTION The terrorist attacks of September 11 2001 and the ensuing war on terrorism brought to center stage issues that have previously lurked in a 1 Ian Brownlie Interrogation in Depth The Compton and Parker Reports 35 MOD L REV 501 501 1972 2 Bruce Ackerman Don t Panic LONDON REV BOOKS Feb 7 2002 at 15 3 LEARNED HAND THE SPIRIT OF LIBERTY PAPERS AND ADDRESSES OF LEARNED HAND 189 90 Irving Dilliard ed 3d ed 1960 This selection from The Yale Law Journal is not paginated and should not be used for citation purposes 2003 Chaos and Rules dark corner at the edge of the legal universe such as how a constitutional regime should respond to violent challenges 4 This question is as ancient as the Roman Republic5 and as new as the realities wrought by the terrorist attacks of September 11th It has faced nations embroiled in wars against external enemies as well as those responding to violent movements within their own borders It has haunted countries powerful and weak rich and poor The dilemma confronting a constitutional democracy having to respond to emergencies has been famously captured by Abraham Lincoln s rhetorical question A re all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated 6 Yet prior to the attacks in New York Washington and Pennsylvania violent crises and emergencies and their implications for legal systems had not attracted much attention in legal scholarship Ian Brownlie s perceptive observation about the scant attention given to such issues in studies of English constitutional law7 can be applied with at least equal force to the United States Discussion of emergency powers in general and counterterrorism measures in particular has been relegated to a mere few pages at most in the leading 4 By violent challenges I mean such events as rebellions wars or terrorist threats and attacks As explained below my focus in this Article is on violent crises and emergencies


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