|
The Anti-Emergency Constitution |
|
|
|
|
Laurence H. Tribe and Patrick O. Gudridge [View as PDF]
|
113 Yale L.J. 1801 (2004)
INTRODUCTION
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. 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, 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. 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.
|
