Youngstown and Negative Pragmatism

Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.

Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.

The French Republic provided for a very different kind of emergency government known as the “state of siege.” It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority.

Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation. As Parliament is not bound by written constitutional limitations, it established a crisis government simply by delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the “high-water mark in the voluntary surrender of liberty,” but, as Churchill put it, “Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance.” Thus, parliamentary control made emergency powers compatible with freedom.

This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the “inherent powers” formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.

There are, of course, a handful of cases in which the Court has used comparative empiricism negatively to warn against extreme responses of totalitarian regimes to curtail civil liberties. These cases offer a parade of horribles of state infringements on basic civil liberties. For example, in Shaughnessy v. United States the Court stated: “No society is free where government makes one person’s liberty depend upon the arbitrary will of another. Dictatorships have done this since time immemorial. They do now [in Russia, China and Nazi Germany] . . . . Our Bill of Rights was written to prevent such oppressive practices.” Such negative pragmatism highlights competing systems of government that offer extreme representations of oppressive violations of civil liberties. Uncivilized systems are presented for derision, not emulation. This is hardly the sort of pragmatism to which Justice Breyer aspires.

A lesser variant of negative pragmatism is found when the Court examines comparative experiences only for the purpose of rejecting the foreign approach as inappropriate. In Raines v. Byrd, the Court noted that “[t]here would be nothing irrational about a system that granted standing [to legislatures, as] . . . some European constitutional courts operate under one or another variant of such a regime. . . . But it is obviously not the regime that has obtained under our Constitution.” In Washington v. Glucksberg the Court noted evidence in the Netherlands supports the legislative concern that opening the door to physician-assisted suicide could affect a broader license to practice euthanasia that would be difficult to police and contain. “Euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and . . . regulation of the practice may not have prevented abuses in cases involving vulnerable persons.” The Court thus utilized the Dutch experience as evidence of the potential evils that might result from regulation as compared with prohibition, intimating that the problems in the Dutch experiment supported the state’s argument for a rational basis in banning the practice. But positive experiences from abroad are less frequently invoked to support pragmatic empiricism.

Thus, negative pragmatism has occasionally been used to highlight aberrant foreign practices or advance American distinctions. With negative pragmatism, foreign experiences are offered as object lessons of what not to do.