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Published online by Cambridge University Press: 30 November 2010
The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times.
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2 We speak of “aspiration” rather than of constitutionalism simply because the American political system, like all such systems, sometimes falls short of the operational reality affirmed or aimed at in the Constitution.
3 See Zuckert, Michael, “Hobbes, Locke, and the Problem of the Rule of Law,” in The Rule of Law, ed. Shapiro, Ian (New York: New York University Press, 1994)Google Scholar; and Jean Hampton, “Democracy and the Rule of Law,” in ibid.
4 Schmitt defines the question about the “exception” as “who decides in a situation of conflict what constitutes the public interest or interest of the state, public safety and order, le salut public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.” Schmitt, Carl, Political Theology (1922), trans. George Schwab (Chicago: University of Chicago Press, 1985), 6Google Scholar.
5 Ibid., 11. Schmitt is of course well known for his Nazi connections, but these do not detract from the force of his argument.
6 Ibid., 6–7.
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17 The Kentucky Resolutions, drafted by Jefferson, were adopted by the Kentucky legislature in response to the Alien and Sedition Acts of 1798. The resolutions laid out a case for the unconstitutionality of the acts and proposed a method of responding to that unconstitutionality.
18 The “necessary and proper” clause is part of the U.S. Constitution's Article I, section 8, which specifies the powers granted to Congress. It specifies that “Congress shall have power … to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.”
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43 Quoted in Madison, Federalist No. 49, in Cooke, ed., The Federalist, 339 (emphasis omitted).
44 Madison, Federalist No. 49, p. 340.
45 James Madison, “Speech on the Bank Bill,” in Banning, ed., Liberty and Order, 75.
46 Ibid., 75.
47 Ibid., 76.
48 Ibid., 74.
49 Ibid., 75.
50 Ibid., 76.
51 Madison, Federalist No. 51, in Cooke, ed., The Federalist, 349.
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59 Marshall, John, “A Friend of the Constitution V,” in John Marshall's Defense of McCulloch v. Maryland, ed. Gunther, Gerald (Stanford, CA: Stanford University Press, 1969), 190–91Google Scholar; quoted in Berger, Executive Privilege, 10.
60 Blackstone, Commentaries, 1:249. Blackstone explains: “[T]he king has also the sole prerogative of making war and peace.”
61 U.S. Constitution, Article II, section 2.
62 Letters of marque are specific authorizations that allow the holder to search, seize, and/or destroy possessions of another person outside of the issuing nation's borders. Letters of reprisal authorize the holder to retaliate against an individual who has broken the laws of war; they permit the holder also to ignore the laws of war during the retaliation.
63 Berger, Executive Privilege, 107–8.
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70 Ibid., 29.
71 Berger, Executive Privilege, 57. The Pacificus letters were written by Hamilton in defense of President Washington's Neutrality Proclamation in 1793. See note 41 above.
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79 Mark Tushnet, “Emergencies and the Idea of Constitutionalism,” in Tushnet, ed., The Constitution in Wartime, 44.
80 It may be noted, however, that in looking to the people Tushnet is closer to the original Jeffersonian model than are many other contemporary devotees of Model II.
81 Mark Brandon, “War and the American Constitutional Order,” in Tushnet, ed., The Constitution in Wartime, 11.
82 Bessette, Joseph and Schmitt, Gary, “The Powers and Duties of the President: Recovering the Logic and Meaning of Article II,” in The Constitutional Presidency, ed. Bessette, Joseph and Tulis, Jeffrey (Baltimore, MD: Johns Hopkins University Press, 2009), 10Google Scholar.
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84 Ibid., 2.
85 Yoo, John, The Powers of War and Peace (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar.
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88 Ackerman, Bruce, Before the Next Attack (New Haven, CT: Yale University Press, 2006), 82Google Scholar.
89 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Google Scholar. Here the Court ruled that although the executive has the constitutional power to detain enemy combatants, detained U.S. citizens must be provided the ability to challenge their detention in front of an impartial judge.
90 Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar. In Hamdan, the Court concluded that the Bush administration military commissions violated the Uniform Code of Military Justice and the Geneva Conventions of 1949.
91 Boumediene v. Bush, 553 U.S. 723 (2008)Google Scholar. Here the Court ruled that foreign nationals, held as military enemy combatants, have a constitutional right to a habeas corpus hearing.
92 Justices Stevens, Souter, Ginsburg, Breyer, and Kennedy formed the majority.
93 Moyer v. Peabody, 212 U.S. 78 (1909)Google Scholar.
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95 See, for example, Hamdi, Hamdan, and Boumediene, cited in notes 89, 90, and 91.
96 Amendment V reads, in relevant part, “No person shall be … deprived of life, liberty, or property, without due process of law…” and Amendment VIII prohibits “cruel and unusual punishments.”
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