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Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

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Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? Article Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? t Oren Gross CONTENTS I. IN TRODUCTION .................................................................................1014 II. DEMOCRACY AND STATES OF EMERGENCY: A TENSION OF "TRAGIC DIMENSIONS". ...........................................1027 A . Action over Deliberation ............................................................ 1031 B . JudicialD eference .....................................................................1034 C. Public Support, Temporal Duration,and "Otherness .............1035 D. Perceptionsand Misperceptions................................................ 1038 " 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. 1011 Imaged with the Permission of Yale Law Journal 1012 The Yale Law Journal [Vol. 112: 1011 III. KEEPING THE LAW ON OUR SIDE: CONSTITUTIONAL MODELS OF EMERGENCY POWERS ..................... 1042 A. The Business as UsualModel .................................................... 1043 1. "It is imperative that the trains run on schedule. "............. 1043 2. Challenges and Justifications.............................................. 1044 a. The Charge of Hypocrisy ..............................................1044 b. Absolutism and Resistance............................................ 1046 i. ConstitutionalAbsolutism and Perfection.............. 1046 ii. A Strategy of Resistance ......................................... 1048 iii. Myths, Symbolism, and Ideals ................................ 1050 iv. Slippery Slopes ....................................................... 1052 3. Courage andRelevancy: Ex parte Milligan ........................ 1053 B. Models ofAccommodation ......................................................... 1058 1. "Each crisis brings its word and deed . ............................ 1058 a. InterpretativeAccommodation ...................................... 1059 b. Legislative Accommodation .......................................... 1064 i. Modifying OrdinaryLaws ...................................... 1065 ii. Special Emergency Legislation .............................. 1065 c. Executive Inherent Powers ........................................... 1066 2. Challenges andJustifications .............................................. 1068 IV. THE ASSUMPTION OF SEPARATION .................................................. 1069 A. Normalcy and Emergency: The Discourseof Rule and Exception ........................................ 1070 B. Four Degrees of Separation....................................................... 1073 1. Sequencing and TemporalDistinctions: Separatingthe Best and the Worst of Times ........................ 1073 2. It's a Bad World out There (I): Spatial Distinctions ............................................................. 1075 3. It's a Bad World out There (I): Domestic and ForeignAffairs ............................................. 1077 4. Communal Divisions: Us vs. Them ..................................... 1082 C. The Breakdown of the Normalcy-Emergency Dichotomy .......... 1089 1. Normalization of the Extraordinary.................................... 1089 2. IncreasingD osages ............................................................. 1090 3. One Can Get Used to This .................................................. 1092 4. Persistenceof JudicialPrecedents ...................................... 1094 5. Structural and InstitutionalChanges .................................. 1095 V. THE EXTRA-LEGAL MEASURES MODEL ........................................... 1096 A. Ethic of PoliticalResponsibility ................................................. 1102 1. Locke's Theory of the PrerogativePower ........................... 1102 2. Theory: Searchingfor "MoralPoliticians ....................... 1104 Imaged with the Permission of Yale Law Journal 20031 Chaos and Rules 1013 3. Practice: "Casting Behind MetaphysicalSubtleties ......... 1106 4. Ex Post Ratification............................................................. 1111 B. Challenges andJustifications .................................................... 1115 1. A Nation W orth Saving?...................................................... 1115 2. Acting upon Great Occasions.............................................. 1118 a. Warning: You Are Now Entering an Emergency Zone. Usual Categories of Judgment No Longer Apply! ........ 1118 b. The (Not So) Obvious Casefor Rule Departures.......... 1121 i. Crossing the Threshold (andGiving Reasonsfor It) .................................... 1122 ii. Open and Informed Public Deliberation................ 1126 iii. Precedents:Hard Cases Make Bad Law ................ 1130 VI. CONCLUSION: FAITH AND MICROSCOPES ........................................ 1134 Imaged with the Permission of Yale Law Journal 1014 The Yale Law Journal [Vol. 112: 1011 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,2 create a demand for even more repressive laws, and on and on. 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. While3 it lies there it needs no constitution, no law, no court to save it. 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 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 Republic 5 and as new as the realities wrought by the terrorist 1. Ian Brownlie, Interrogation in Depth: The Compton and ParkerReports, 35 MOD. L. REV. 501, 501 (1972). 2. Bruce Ackerman, Don'tPanic, 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). 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 as distinguished from economic crises and natural disasters. Cf ALEX P. SCHMID & ALBERT J. JONGMAN, POLITICAL TERRORISM 1-38 (1988) (describing the problems associated with defining "terrorism"); Oren Gross, "'Once More unto the Breach": The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies, 23 YALE J. INT'L L. 437, 438-39 (1998) (describing the problems associated with defining "emergency"); Keith E. Whittington, Yet Another ConstitutionalCrisis?, 43 WM. & MARY L. REV. 2093, 2096-98 (2002) (describing the problems associated with defining "crisis"). 5. For a discussion of the Roman dictatorship, the constitutional institution used by the Roman Republic to deal with states of emergency, see, for example, M. CARY & H.H. SCULLARD, A HISTORY OF ROME (3d ed. 1975); and CLINTON L. ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES 15-28 (1948). Alexander Hamilton also commented on the Roman dictatorship: Every man the least conversant in Roman history knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. Imaged with the Permission of Yale Law Journal 2003] Chaos and Rules 1015 attacks of September 1 Ith. 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
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