NCJ Number
204180
Journal
Stanford Law Review Volume: 56 Issue: 3 Dated: December 2003 Pages: 605-644
Date Published
December 2003
Length
40 pages
Annotation
This paper critiques two common arguments against the longstanding judicial practice of deferring to the political branches, especially to the executive branch, during wartime and other emergencies.
Abstract
There are two main views about the proper role of the U.S. Constitution during national emergencies: the "accommodation" view and the "strict enforcement" view. The accommodation view is that the Constitution should be relaxed or suspended during an emergency so that the executive can move forcefully against the threat. The strict enforcement view is that constitutional rules should not be relaxed during an emergency, since the Constitution already provides that the level of protection for civil liberties depends on the interest of the government. Under both views, it is up to the courts to determine the degree of deference that will be given the executive during an emergency. High deference would permit some aggressive executive actions that would be prohibited under low deference. Civil libertarians have argued that judges systematically overlook two costs or risks that accompany giving high deference to aggressive executive action during emergencies. The first overlooked cost is the long-term, post-emergency institutional damage from accommodating aggressive executive action during an emergency (the "ratchet" theory). The second is the risk that fear during an emergency leads to bad policy (the "panic" theory). The ratchet theory argues that emergencies work like a ratchet. With every emergency, constitutional protections are reduced; and after the emergency is over, enhancement of constitutional powers is either maintained or not fully eliminated, so that the executive ends up with more power after the emergency than before, with each successive emergency increasing executive power. The panic theory maintains that during an emergency, people panic, which leads to their support for policies that are unwise and excessive. In critiquing the arguments of these two theories, this paper argues that each theory has conceptual, normative, and empirical weaknesses. The ratchet theory lacks a mechanism that permits constitutional powers to rise and prevents them from falling and makes implausible assumptions about the rationality of individuals who consent to constitutional changes during emergencies. The panic theory relies on a psychologically unrealistic conception of fear and on dubious empirical assumptions about the influence of fear on public policy. Finally, defenders of either theory do not examine their normative premises sufficiently. Even if the events predicted under the two theories do occur, it is not clear that they are inherently detrimental to the Nation. Fear is often the correct response to a threat; panics can shatter constitutional structures, but sometimes constitutional structures should be shattered. Ratchets put the status quo out of reach, but sometimes the status quo should be changed. 77 notes