Emergency powers have been a long-standing topic in political and constitutional theory since the experience of ‘‘dictatorship’’ in the ancient Roman Republic, and have recently become an object of intense debate because of the new threat to liberal-democratic order represented by global terrorism. 

These issues take somewhat different shapes in the United States and Europe. Some of the European constitutions have explicit mechanisms for dealing with emergencies, although these have rarely been employed and not at all to confront global terrorism. American scholars are divided as to whether or not the US Constitution contains an emergency regime, or if it does not, whether it should (see Ackerman 2004, for one proposal). One must suppose that those in the latter camp think that such a constitutional option if it existed, would be used in circumstances roughly like that created by international terrorism. But whatever the facts about constitutions and whatever the likelihood that constitutional provisions would actually be invoked, it seems important to clarify the notions of emergency and emergency powers.

In this chapter, therefore, we will try to disentangle and shed light on some of the main conceptual questions entailed in the doctrine of emergency powers, taking into account the theory and experience of their enforcement. ‘‘Public emergency situations involve both derogations1 from normally available constitutional rights and alterations in the distribution of functions and powers among the diVerent organs of the State’’ (European Commission for Democracy through Law 1995, 4). Recognition and protection of human rights and separation of powers are, indeed, not only defining characteristics of modern constitutionalism but more, in general, distinctive elements of any non-absolutist and anti-despotic power that we shall call polyarchy. 

By this word, we mean a political and constitutional system in which powers are distributed among diVerent branches and agencies of the government and in which fundamental rights are recognized in the constitution and enforced in some way. In some constitutional circumstances, these features (separation of powers and fundamental rights) may be suspended by invoking emergency powers, but only under a strict stipulation: if their enforcement has the effective aim of stabilizing the constitutional status quote.

In other words, they are a conservative measure, comparable to the Lockean idea of revolution, an ‘‘appeal to heaven,’’ the function of which was to re-establish the Ancient English Constitution, which had been threatened by an attempt to establish in the Kingdom an absolute monarchy. Without that conservative principle, the suspension of the polyarchical principle would not be an exercise of emergency powers but would be a constitutional innovation or transformation or, to use Carl Schmitt’s (1994) expression, an application of constituent powers. 

In what follows we distinguish a ‘‘constitutional’’ from an ‘‘epistemic/ ontological’’ dimension of emergency powers. The emergency regime, if it exists in a constitution, is a legal/constitutional object. But such constitutions only authorize the invocation of such regimes if a certain factual circum- stance has occurred or, to put it another way when the existence of a certain kind of threat has somehow been legally ‘‘recognized.’’ 

We may illustrate the difference by considering the classical example. The Roman ‘‘constitution’’ had one or possibly two constitutional emergency regimes: the first, which we discuss below, was the classical ‘‘dictator’’ who was appointed by the consuls after the Senate had recognized a circumstance of an emergency. The dictator-ship was employed fairly often from the inception of the republic until 200 BC when it, for various reasons, fell into disuse. The second was the Senatus consultum ultimum, employed in the second and first centuries, in which the Senate (as before) declared an emergency but did not require the consuls to appoint a dictatorship. Rather, in the examples we have, it authorized direct action against the emergency (von Ungern-Sternberg 2004 has a description of the known cases).

The main object of this chapter is to discuss the constitutional aspects of emergency powers. The constitutional dimension of our question can be summed up with the words: how is it possible to think of the position and force of emergency powers within a polyarchical constitution? We shall return to discuss the epistemic dimension only briefly at the end of the chapter.


In general, the classical or ‘‘pre-democratic’’ (which we shall also denote ‘‘Roman’’) constitutional4 doctrine (from the Roman Republic which was discussed sympathetically by Machiavelli in his Discourses on Livy5 and also by Rousseau in The Social Contract) distinguishes between:

(a) regular government and

(b) exceptional government,

where, as already mentioned, the purpose of exceptional government is to keep or restore the status quo ante (i.e. the regular government), and is in this sense a ‘‘conservative’’ or stabilizing device.7 The classical constitution, in this sense, contains or authorizes two distinct governments with diVerent distributions of powers and under which people enjoy a distinct set of rights. But these two are connected in the sense that the only legitimate purpose of the exceptional regime is to restore the regular regime and the conditions that permit it to resume functioning.

Many classical and modern constitutions specify a regular constitutional regime, which we call a ‘‘polyarchy’’ within the governmental structure. Polyarchies are characterized by some form of ‘‘separation of powers’’ in the exercise of political authority and by the recognition of some citizens’ rights. Most modern constitutional regimes—those adopting their constitutions after the Second World War—have incorporated the two defining features of polyarchy. This tendency is nearly unanimous in relatively developed democracies. Here are some examples of different types of polyarchical regimes:

1. The classical mixed government (the Aristotelian minigene politeia [Politics, book 4]); rights protection in the Athenian version rested on free access of citizens to the courts and the assembly.

2. The Roman Republic according to Polybius’ description (Histories, B. VI) or as given by Machiavelli in the Discourses, I.2. This regime provided legal protections for certain due process rights.

3. Modern constitutional systems with separated powers based on mechanisms of checks and balances, with protections for individual rights of various kinds, normally specified in a written text.8

4. Modern parliamentary systems with constitutional courts (Germany and

Italy and most recently established constitutional democracies).

Exceptional constitutional regimes have normally taken the form of a monocracy (i.e. one without internal checks or separations of power) that suspends temporarily some (or all) citizens’ rights. Historical examples of exceptional regimes are:

1. the Roman dictatorship in the first centuries of the Republic (and also the Senatus consultum ultimum, and possibly Sulla’s dictatorship10 rei publicae constituendae causa 82 BC11);

2. the French Comite´ de Salut Public during the Terror (collegial and accountable12 dictatorship terminated by the Convention on Termidor 9th);

3. the presidential version of the Roman Model (which we shall label ‘‘neo- Roman’’):

art. 48 of the Weimar Constitution (1919);13

art. 16 of the French Constitution (1958).14

The Roman model—in which we may include the French Comite de Salut Public—is characterized by the fact that the exercise of emergency power involves the creation of a special agent outside the ordinary constitutional structure. The Romans may have done this to insulate what happened in the state of emergency from the actions of ordinary government, to insulate the constitution from the precedents established in emergencies. In the neo-Roman model, by contrast, emergency powers are exercised by one of the branches of the regular government, normally the popularly elected executive,15 which in emergency circumstances is empowered with special prerogatives.

The difference between the modern examples and the classical Roman model is twofold: In the Roman dictatorship, the agency declaring the emergency (the Senate) is diVerent from the agent appointing the official who can exercise the emergency powers (the Consuls) and is diVerent from the agency exercising Emergency Powers (the dictator). Moreover, the dictator is not an active magistracy during the regular government.

In the modern, or neo-Roman, model the head of the executive recognizes an emergency, and the same agent exercises Emergency Powers. And, the executive is a regular (not a dormant) organ of the constitutional system. One can suspect immediately that the Romans were much more concerned with potential abuses of emergency powers than were the designers of the modern constitutions who perhaps put more faith in the fact that the executive had to stand for election.


Many contemporary constitutions16 include explicit provisions establishing, in various ways, an extraordinary and temporary form of government that suspends rights and the normal separation of powers, to face emergencies and preserve the political order from threats arising from internal or external enemies or by other exceptional circumstances. It is possible to argue that, even in those regimes that do not contain explicit constitutional provisions describing emergency powers and when they can be invoked, there exists a kind of dormant or implicit power to deal with extreme situations. And of course, in some of these constitutions, one can find fragmentary textual support for such an idea. We do not pursue this interesting thesis here but concentrate on self-consciously ‘‘dualist’’ constitutions.

It is important to stress that constitutional powers to suspend rights, where they exist, are rarely actually employed in advanced or ‘‘stable democracies’’. The last relevant example was probably de Gaulle’s recourse to art. 16 of the French Constitution during the Algerian crisis in 1961. ‘‘constitutional dictatorship’’18 as a form of provisional may government tends to die out in stable democracies, perhaps because it is too dangerous or, perhaps, because it is politically risky to invoke such powers. Or, perhaps the stable democracies since the Second World War have simply been lucky enough never to face a circumstance that was so threatening as to justify or even require the use of emergency powers.

On the other hand, unstable or young democracies tend repeatedly to resort to emergency powers, often as a way to protect or prolong the incumbent government against political opponents. India, Pakistan, Nigeria, and several Latin American countries—one can think of Colombia—have repeatedly used constitutional emergency provisions during the last forty years. We leave aside Israel, which, since its founding, has been living under a constant threat, and where there has been a constant use of and a large debate about emergency powers. The emergency powers employed there do not seem to implement a monocratic rule that is characteristic of other emergency regimes.

It is worth noticing, conceptually, that the ‘‘dualistic’’ regime just described has been regularly rejected by what we may call monistic or parliamentary sovereignty constitutional systems (and their intellectual supporters). The most prominent contemporary example is Great Britain, of course, but New Zealand and the French Third Republic provide other examples of quasi- monocratic systems.19 Doctrines of unified sovereignty in two traditional versions—absolutism (Hobbes) and popular sovereignty (as- sociated by Condorcet, and also Kelsen)—also tend to deny the need for Emergency Powers or even to reject it as leading either to a contradiction (imperium in imperio) or to social disorder and civil war.

First, in ‘‘monocratic’’ systems (either strictly monocratic in Hobbes’s sense, or else systems with a vertical and functional separation of powers so that the legislature is the sovereign agency) there is no need to suspend normal separations of power or human rights as these are not polyarchical systems. If there is a need to suspend rights or consolidate powers to deal with an emergency,  all this can be managed efficiently by the sovereign body itself—normally the legislature (like in the British parliamentary system).

Second, where legitimacy is based essentially on legal rules one needs legal rules to suspend rights. If legitimacy is based on express consent the suspension of rights needs less of a procedural justification. The point here is that non-despotic pre-democratic societies,  like the Roman Republic or England in the seventeenth century, have been very insistent on the importance of legality or legal regulations, and as a result,, they have tended to regulate rights and suspension rights through ordinary laws (or Senat- oral decrees in Rome). For the same reason, parliamentary sovereignty regimes, because they are monocratic in our sense, do not need these complex legal-constitutional provisions because their statutes can be regarded as expressions of the popular will, as expressed in elections, and the elected government is effectively under the control of the voters.

In what we call neo-Roman systems, however, constitution-makers have thought there was good reason to create special emergency powers. Perhaps, as in Rome, they settled on a constitutional system that had extensively divided powers and which was for that reason unlikely to cope well with emergencies of certain kinds. Or perhaps the ‘‘constituent power’’ did not think parliament capable of successfully managing emergencies (that was the case of men like Hugo Preuß who drafted the Weimar constitution), or perhaps the constitutional drafters simply did not trust parliament at all (as with de Gaulle who did not trust the political parties—and their domain, the parliament—but only himself and the French citizens).

A new type of dualism seems nowadays to be replacing the old one. It started in the USA, probably during the Civil War. In that conflict Lincoln frequently suspended rights of habeas corpus, initially on battlefields but eventually in other places as well. In doing so he was forced to confront the courts— initially defying Chief Justice Taney’s order to release a prisoner. But over time, and especially after the war ended, the Supreme Court successfully challenged several administration detentions, especially where the arrests concerned people outside of war zones and where there were ordinary courts available to hear constitutional claims (Farber 2003 gives an account of these events; Randall 1926 discusses them from a legal point of view). In effect, Lincoln was free to fight the Civil War however he and Congress wanted, but his sphere of autonomous action was checked by courts, especially on the battlefield.

Thus, Congress and the president has broad authority to take the measures to deal with ‘‘emergencies,’’ as was the case after September. But there are two judges of those emergency measures: the voters at the end of the electoral mandate; and the courts, which can issue writs against the government if its powers are exercised outside of judicially determined emergency circumstances. The fact that voters can reject the incumbent government and its policies is true by definition of any democratic system, including the neo-Roman examples discussed above, and does not need special comment. The new role of the courts, however, was a special consequence of the American constitutional tradition according to which citizens’ rights are protected by independent courts against statutes and ordinary executive actions. Following the sequence of judicial decisions during and after the Civil War, it became clear that these judicial protections extended to the decisions of the president taken under circumstances of emergency.

These constitutional developments remained a parochial American phenomenon until the Second World War. The remarkable spread of mechanisms and practices of constitutional adjudication in the postwar period has exposed democratic governments generally to the possibilities of judicial regulation of emergencies. The postwar model, that at a given moment in time (t1) politically accountable organs make decisions and later on (in t3) judges check those decisions, amounts, in our view, to the replacement of the classical dualism: regular/exceptional government. In the first model—the neo-Roman one—legal (constitutional) provisions can only regulate emergency powers ex-ante by setting out the constitutional options. In the second model—the one we are considering now and in which courts play a role— judicial control ex-post acts upon decisions made by political (elected) powers during what they considered emergency situations. 

Indeed, in the new model, courts have the opportunity to regulate government decisions in the interim (t2) as well: The courts may be able to order the executive accord rights to detainees during the crisis itself or even order their release. Obviously, this is a controversial and constitutionally unsettled matter in the American courts.

Two objections can be addressed to this t1–t3 model. The first objection is that courts tend to be too deferential to the agency exercising emergency powers. There is the little systematic empirical basis for this claim,22 and much depends on the point in time that the courts act to check executive action.23 So the conclusions are often just an unraveling of a priori assumptions or are based on disputed interpretations of contentious cases. The second objection is that the ex-post control being ex-post is by nature too late.

This objection has to be considered seriously. In its thick version it kills democracy altogether and not just judicial review of decisions made under emergency; since a prime minister or a president (with the support of Congress or the parliament) can decide to occupy militarily a country X to protect his own country and it may well happen that the voters will be able to repeal that decision only a couple of years later when it is too late! In principle, they may be waiting for four or five years! In its thin version, it can be taken into account and rejected.

When we analyze a decision of the American Supreme Court we have to consider three dimensions:

A. the legal eVect (on the litigants);

B. the arguments (and counterarguments—when the Court is not unanimous) or opinions given in the case that provide the reasons for deciding A;

C. the role of the decision as a ‘‘precedent.’’

The last eVect is the most important in that it establishes the rule governing future conduct by government officials and may well have a deterrent eVect on their future decisions, a consequence of especially great significance when it comes to emergency powers. One can think of Marbury vs. Madison: the legal eVect of the Court’s decision in 1803 was favorable to the government and not to the plaintiff (who did not receive his appointment). But this is not the most important aspect of Marbury. What was and is still important was the argument presented by Justice Marshall established a precedent based on which the American Supreme Court has the last word about the constitutionality of statutes.

Korematsu vs. the United States (1944), often (and for good reasons) criticized because of its official racial discrimination against the Japanese, established nonetheless the principle that made the Guantanamo decision (2004) possible: that it is up to the courts, and the Supreme Court in the last instance, to adjudicate if the measures taken by the Congress and the president under the emergency are compatible with the constitution25 and pro- proportional to the threat.26 Justices Jackson’s and Murphy’s dissenting opinions, while they were possibly right concerning the legal consequences of the specific controversy, seemed less sensible as precedent.

Justice Jackson, for example, argued that ‘‘It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. . . . No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be.

But a commander temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.’’ In eVect, Jackson was willing to permit very wide and unreviewable discretion to the executive in times of emergency to preserve the regular constitution from precedents generated in exceptional circumstances. His view reflected the kind of dualism reflected in the Roman model in that it insisted upon a strict separation of the Constitution in normal times from the Constitution during emergencies.

Had Jackson been able to persuade the Court, the judiciary would have been essentially unable to protect rights during future emergencies. By claiming that military questions are not for courts to decide, Jackson was willing to confine the court to adjudicate the legal effect of those military decisions after the fact.27 He refused to impose any test of proportionality in emergency circumstances effectively giving the military carte blanche in those circumstances. While he permitted legal redress for illegal actions taken during emergencies—he refused to vote to convict Korematsu for violating the detention order—such determinations are necessarily ineffective as remedies for certain actions such as executions. So Jackson’s opinion would not permit very much control of emergency actions ex-post, and no control whatever during the interim while the emergency is ongoing.

Unlike Jackson’s posture of temporary deference, Justice Murphy argued that ‘‘it is essential that there be definite limits to military discretion, especially where martial law has not been declared.’’ In effect, he defended a monistic view of the Constitution—the view that there is a single constitutional regime that governs at all times and that the circumstances of emergency do not require any special constitutional procedures.

‘‘Individuals,’’ he argued, ‘‘must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.’’ Then, he went on to argue that ‘‘no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.’’

Justice Murphy would have required the government to submit actions of this kind to judicial determination and not permitted the executive the wide if temporary, discretion offered by Justice Jackson.28 Arguably, had his opinion gained a majority, it would have limited the capacity or at least the flexibility of the government to deal with circumstances of the kind represented by global terrorism, reducing the fight against the enemy to the dimension of criminal law (intervening ex post facto).

Justice Black’s opinion for the majority strikes a moderate or intermediate stance. It recognizes that emergencies are diVerent from ordinary times and that the government will do things under these circumstances that it would not be permitted to do otherwise. But Black insisted that the courts ought not to stay on the sidelines as Jackson advised but should be ready to review governmental actions not only after the emergency but while it is proceeding. It seems to us that, Justice Black’s opinion notwithstanding, its weaknesses were very important because

(a) it established the authority of the courts to review and impose limits on the political branches for their conduct in emergencies;

(b) it established the precedent that the political branches have to take the possibility of judicial review of executive actions, ex-post and possibly in the interim, into account on any future occasion;

(c) it rejects any idea that emergency measures are ‘‘political questions’’ excluded from the Court jurisdiction—a point that the Bush administration tried unsuccessfully to vindicate in the Guantanamo case;

(d) it makes (constitutionally) possible preventive measures in which courts can measure the proportionality of government actions against the actual danger they had to face;

(e) eventually, Black stresses (against Jackson) that the Court has to apply some kind of proportionality test in the time of the emergency (t2) and not only afterward when the court is asked to decide the legality of government conduct (t3).

If we consider all these aspects, the truth that courts can hesitate at the beginning to oppose the executive and the legislative powers have to be relativized considering that they seem to be, in a stable constitutional democracy, the last and the first defense against abusing emergency powers, since they cannot only check ex post those abusive measures but also have a role during the emergency itself. And of course, they have an ex-ante role as well if we take into account the precedential effect that a ruling plays in governing future circumstances.

As to the epistemic/ontological dimension of Emergency Powers, the crucial question can be phrased in the following terms: What is an exception or an emergency? It seems clear that the question here is not a purely legal one— some factual state of affairs plays an essential role in justifying special procedures—so the answer can not simply be ‘‘derogation.’’

Some authors claim that it can be answered objectively: If Hannibal is ‘‘adportas’’ of Rome, there is an objective emergency, like those announced according to Hobbes (in the Leviathan’s Dedicatory Letter to Francs Godolphin) by the ‘‘simple and impartial creatures in the Roman Capitol, that with their noise defended those within it!’’ Likewise, if the Red Army had crossed the border of West Germany, it would have been legitimate to apply article 115 of the Bonner Grundgesetzt (which was intended to deal precisely with this, now defunct, possibility). Nonetheless, how one should interpret ‘‘ad’’ (portas) is tricky. ‘‘Ad’’ means not far, but what does it exactly mean? Was it not true that Charles I was claiming that the Kingdom was facing an emergency because the Dutch fleet was ‘‘ad portas,’’ threatening the English coasts? It seems that interpretation, and controversy, cannot be eliminated.

It seems to us that the only way to cope with the problem is to abandon the illusion that an emergency is a kind of ‘‘fact’’ and accept that we have procedures for deciding whether a constitutionally significant emergency exists: the politically accountable organs will necessarily have to make the epistemic judgment of whether or not an emergency exists that would justify the invocation of emergency powers. Within modern constitutions, of course, these decisions are regulated, eventually, by voters and courts.

Previous Post Next Post