Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional

Journal Article: Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional

Journal: The Yale Law Journal

Date of Publication: 13 February 2003

Author: Oren Gross

How to Cite: Gross, O. (13 February 2003) Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? Yale Law Journal, Vol. 112 (5), 1011-1134 or 112 Yale L.J. 1011 (2003)

Introduction: The terrorist attacks of September 11, 2001, and the ensuing “war on terrorism” brought to center stage issues that have previously lurked in a dark corner at the edge of the legal universe, such as how a constitutional regime should respond to violent challenges. This question is as ancient as the Roman Republic and as new as the realities wrought by the terrorist attacks of September 11th. It has faced nations embroiled in wars against external enemies, as well as those responding to violent movements within their own borders. It has haunted countries powerful and weak, rich and poor. The dilemma confronting a constitutional democracy having to respond to emergencies has been famously captured by Abraham Lincoln’s rhetorical question: “[A]re all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?” Yet, prior to the attacks in New York, Washington, and Pennsylvania, violent crises and emergencies and their implications for legal systems had not attracted much attention in legal scholarship. Ian Brownlie’s perceptive observation about the scant attention given to such issues in studies of English constitutional law can be applied, with at least equal force, to the United States. Discussion of emergency powers in general, and counterterrorism measures in particular, has been relegated to a mere few pages, at most, in the leading American constitutional law texts. Nor has the situation been much different in other countries. Emergencies have been conceptualized as aberrations, rare and uninteresting exceptions to the otherwise ordinary state of affairs. As Fred Schauer suggested in another, yet related, context, the exception has been “an invisible topic in legal theory.”

In the context of emergency powers, the exception is no longer invisible. Nowhere is this more pronounced than in the current controversy over the possible establishment of special military tribunals. Until relatively recently, few (legal academics and practitioners included) were aware of the Supreme Court’s decision in Ex parte Quirin or of the requirements set forth by the international laws of war for acquiring the status of lawful combatancy. Certainly, more were familiar with the 1866 decision in Ex parte Milligan, but even there, one suspects that the extent of such familiarity was quite limited. 

The full text of the article and a .pdf version is available on Yale Law Journal’s website here.

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