Adult Conversation on the Emergency Constitution

The Georgia Law Review has a Spring 2006 symposium issue recently out on emergency powers and the Constitution, organized by our own Kevin Heller and featuring a lead essay from Sanford Levinson, along with responses from Philip Bobbitt, Michael Stokes Paulsen, Kim Lane Scheppele, William Scheuerman, Mark Tushnet, and Kevin himself. It’s an excellent collection, with some genuine engagement. Levinson’s piece includes an interesting excursion situating Blaisdell (which gutted the Contracts Clause in the early New Deal) as an emergency case, but he concludes somewhat fatalistically that constitutional emergencies and their resolution are ultimately more about politics than law (in the current episode, low politics rather than high, lacking the attributes of “adult conversation” — Levinson’s term — that has accompanied historical analogues). Kevin offers up the survival rule as the more analytic measure of extra-constitutional action; Paulsen works from the same sort of premise, though on a much less exacting basis, drawing straight lines between the Emancipation Proclamation and the Bush Administration’s terrorist detention policies by way of legitimizing the latter.

The exchange between Paulsen on the one hand (he not one to keep the gloves on — see this dust-up in the current issue of the Yale Law Journal in which the nicest thing Paulsen can say about Jed Rubenfeld’s Revolution by Judicary is that it’s “not completely ridiculous“), and Heller and Levinson on the other is by itself worth the price of admission, and the remaining contributions are similarly engaging. Highly recommended!