The anti-emergency Constitution.

Author:Tribe, Laurence
Position::Response to Bruce Ackerman in this isssue, p. 1029


The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution--is upon us. Such talk, the staple of commentary on the survival of constitutional democracies in wartime and other similarly trying periods, was to be expected in the wake of September 11.

It was once an unspeakable thought that our Constitution should have lacunae--temporal discontinuities within which nation-saving steps would be taken by those in power, blessed not by the nation's founding document but by the brute necessities of survival. (1) But the unspeakable became more readily articulable when the inimitable pen of Robert H. Jackson gave word to the thought in his canonical dissent from the Supreme Court's justly infamous Korematsu decision, (2) proclaiming that the great harm to liberty and equality done by the military expulsion of Japanese Americans from their homes and communities was dwarfed by the still greater harm done by bending the Constitution into a form that could rationalize that course of action. (3) Better by far, Jackson darkly suggested, would have been a strategy whereby the military would have been left free to do what the law of necessity called for, while the courts washed their hands of the affair and did nothing to create a precedent by holding the military's actions to be constitutional. (4)

Although Justice Jackson failed to work out a scheme that could actually achieve both of those results, there has been no dearth of commentators seeking to close the Jackson gap by dreaming up elaborate superstructures of doctrine and meta-doctrine that could essentially square the circle that the Justice left unsquared. (5) By no means the first of these commentators but by far the most ambitious has been, not surprisingly, Bruce Ackerman, who brings to the task his special gift for provokery. (6) His work, even (perhaps especially) for the unpersuaded reader, persists in memory--reorients resistant thought and recasts problems, working materials, even expectations. (7) The Emergency Constitution (8) is no exception. It is brave. Ackerman proposes that we assume the trauma of September 11 will recur often, and that we face up to the task of thinking through the work constitutional law must do given this assumption. (9) It is startling. Ackerman believes that ordinary constitutional law in all its elaborateness (mostly "fog," (10) he seems to think) should overtly give way in states of emergency like that occasioned by September 11. It is inventive. Ackerman proposes that in states of emergency a constitution of his own devising should instead apply.

In the United States, he thinks, this constitution would likely take the form of a framework statute. Basic procedures are clearly outlined. Each particular state of emergency would require congressional authorization; such authorizations would be subject to time limits and provisions requiring escalating supermajorities for renewals. Congress would be able, in a structured way, to obtain pertinent information developed by executive officials.

But it is not always easy to grasp more than the vaguest contours of Ackerman's scheme. For example, the content of the powers granted to executive officials by a declaration of emergency seems to be left to improvisation by unspecified institutions and at unspecified times (whether by Congress ex ante, or by Congress at the time of the emergency's invocation, or by the emergency-invoking Executive at that time). Ackerman often talks as though authority to engage in wide-scale preventive detention will be the principal power conferred. (11) On this assumption, individuals would be afforded a limited set of procedural and substantive rights, including time limits on detention, a ban on torture, and a right to compensation for those ultimately determined to have been wrongly incarcerated. But at other points, especially in This Is Not a War, (12) Ackerman suggests that any of a seemingly open-ended list of counterterrorism measures might come into play. (13) As a result, this Essay at times must proceed in the alternative, yielding a regrettable cumbersomeness that may make it especially helpful to identify at the outset the broad themes we pursue in the pages that follow.

Our first concern is pragmatic: Is Ackerman's "emergency constitution" a remotely plausible way to organize government action? To the extent that the scheme sets itself up outside ordinary constitutional law--as freestanding--it warrants a particularly searching examination to test for unexpected implications or byproducts, including any that may be so troubling as to bring the entire enterprise into doubt. Based on that examination, we believe the grounds are overwhelming for rejecting the Ackerman proposal as anything beyond an interesting thought experiment--a useful reminder of the reasons for not following the sirens that beckon us in times of crisis to set the Constitution aside and to live by another code altogether.

Second, we worry about the enormity of what proposals like Ackerman's would have us give up in order to create bracketed times and spaces within which we might do terrible things without thereby becoming terrible people. Ackerman, it often appears, genuinely means to jettison much of ordinary constitutional law during the brightly demarked periods within which his emergency constitution is in force. It therefore becomes important to evaluate how the propositions of constitutional law that are retained by--or, more properly, incorporated by reference in--the Ackerman emergency constitution will work in their new context. Beyond that, there is the large question of what Ackerman is willing to abandon, however temporarily: a complex body of conceptualizations, arguments, and points of departure regarding the content and limits of individual rights--one that presents the law of the American Constitution as a system, rather than simply as a pile of rules from which some might be drawn and others discarded as suits the fancy of the alternative constitution-builder. Is this imposing resource, the product of much conflict and hard thinking, really so fragile or so useless in the emergency contexts that Ackerman addresses that it is better to discard it for the time being than to work within its ambit?

Third, we call attention to the role of memory--or rather, of amnesia. Professor Ackerman would treat the state of emergency as discontinuous from and fundamentally outside of ordinary constitutional law and, therefore, as largely irrelevant, except for cleanup matters, to constitutional law after the emergency ceases. To disarm Justice Jackson's loaded pistol, (14) waiting for the tyrant who would but fire it, one must essentially erase it from memory or at least drain it of virtually all its power as precedent, reducing its traces to mere wisps left over from the fog of war. But this constitutional amnesia is likely to be at least as superficial as it is alluring. At its best, such contrived forgetting would merely relegate awareness of previously rationalized abuse to a hard-to-address constitutional subconscious. It is in any case no boon: The memory of how we once rationalized what we later take to be a wrong, sometimes a great and terrible wrong, contributes to constitutional law no less than does the memory of how we have in the past kept our affirmative commitments to do right.

The first Part of this Essay sketches some of the difficulties that seem to us prominent on the face of what Professor Ackerman proposes. But we do not mean to dwell too long on matters of detail: It is the general line of Ackerman's thought that we mean to pursue and, in the end, to criticize. The second and third Parts of this Essay--in which we begin to re-explore our own thinking "after Ackerman," and to re-view the constitutional context--accordingly attempt to take the process of provokery a step or two further. We locate the elements of ordinary constitutional law that Professor Ackerman retains (however implicitly) in his proposal and mark an important question of constitutional reform that he does not discuss. In the process, we also identify what is, at bottom, an important problem of distributive justice created by his proposal. Finally, we emphasize the density of ordinary constitutional law. Its accumulated lines of thought and argument are indeed tantamount--however familiar the metaphor--to the threads of a complex tapestry. We pick out certain of these threads and consider what their patterns suggest about what it is possible to expect--to weave--from constitutional law even in the course of emergencies.

In the process of these explorations, we shift our focus away from Professor Ackerman's specific proposals, although we draw on resources that reflecting on those proposals brings to mind. We propose to complement more than criticize. To that end, we describe judicial responses within constitutional law--in the United States and abroad. Professor Ackerman's analysis, however dialectically, alerts us to much that we had not previously recognized. India's response to constitutional emergency in the 1970s is especially illuminating. Utterly familiar Cold War domestic security cases also disclose considerable judicial ingenuity in framing constitutional inquiries into governmental actions in periods of great peril. This is so not because our Supreme Court always reached conclusions in the Cold War era with which we agree. Rather, it is because the Court's struggles, across close to twenty years, led the Justices to develop useful ways of structuring disagreement--among themselves, within government, and within the country at large--in the very process of defining rights and limits to rights.

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