WE must now examine further the cult of constitutional legality, which, as Chapter 10 indicated, is a key feature of contemporary constitutionalism. To do so, I first return to the early phases of adoption of a modern constitution. But rather than focusing on the United States and Europe as cradles of these ideals, I begin by highlighting developments in Latin America. This is because it is here that we see accentuated the scale of the challenge involved in trying to uphold the authority of the constitution against the background of intense political upheaval.
Throughout the nineteenth century, and in various parts of the world, many liberal political movements sprung up that sought to institute progressive reforms through the vehicle of a constitution designed to consolidate a new regime of limited government. Across Europe, the constitutions of France’s satellite states, including Spain, had been dictated by Napoleon’s policies. But the US Constitution, though generally overlooked in Europe, was paid “the sincere flattery of general imitation” by Latin American countries which, after declaring independence from Spain from 1811, sought to devise new forms of government. Despite their noble aims, however, and except for rare intervals, their experiences were “conspicuously lacking in justice, domestic tranquility and the blessings of liberty.”1
The problem was that Latin American republics had acquired their independence in inauspicious circumstances. Years of war had ravaged their economies, and the Spanish imperial legacy left them not only without effective administrative and fiscal systems but also without any traditions of liberalism, republicanism, or representative government on which they might build a national political identity. They declared themselves republics and adopted constitutions that imitated the American model, with presidential government and protection of basic rights, but they singularly failed to realize their goals. Imbibing the rationalist schemes of Enlightenment philosophers was not enough because the material conditions for success were altogether lacking. Following the demise of the Spanish Empire’s religiously inscribed rule, even the task of bolstering the authority of a bourgeois, property-owning elite proved insurmountable.
The obstacles they faced should not be underestimated. These included “racial and class antagonisms, great inequalities of wealth and income, concentration of land and power in the hands of a small ruling elite, the vestiges of the monarchical tradition … appropriated by Latin American presidents and the quasi-autonomy and privileges of the Catholic Church and military.” In all, over one hundred constitutions were adopted in sixteen Latin American countries during the nineteenth century, with some—such as Bolivia and the Dominican Republic—having enacted more than a dozen each.2
In such a turbulent social and political environment, Latin American constitutions all provided for emergency powers to be invoked in times of internal strife or external threat, most of which were modeled on powers acquired by the French during the revolutionary upheavals of the 1790s. These powers provided the template for the modern concept of the state of siege (état de siège).3 Since the regimes were regularly threatened with civil strife, these powers were frequently invoked. And since the powers provided for the suspension of basic rights, these constitutional republics in reality functioned as “regimes of exception.” This led to the formation of constitutionally authorized systems of authoritarian government.
Most Latin American constitutions formally prohibited military participation in politics, but the reality turned out quite differently. The regular need to invoke emergency powers made attempts to maintain civil control over the military impossible. By the mid-nineteenth century, as Brian Loveman’s research shows, every Latin American constitution had made some provision for regimes of exception, and in over 80 percent of these the constitution explicitly defined the military’s role. Giving it responsibility for protecting the constitution against internal subversion and for maintaining law and order, the military was established as “a fourth branch of government with a constitutionally defined status and a political mission.” Since almost any coup might be justified as intending to preserve the constitution from governmental abuses, Latin American constitutional republics soon became military dictatorships.4
These military dictatorships were not explicitly created by usurpation. They claimed to have been established in accordance with constitutional rules for the purpose of defending the constitution. The military became a key element of the regime’s political system not just by force of circumstance but by deliberate constitutional design. The foundations of this system, laid down in the nineteenth century, later provided the pillars of twentieth-century Latin American constitutions.
Between 1900 and 2008, Latin American countries were under authoritarian rule for an average of over sixty-five years. Moreover, most of their twentieth-century constitutions were made or influenced by authoritarian rulers.5 These were drafted for many reasons, including the need to legitimate their authority both internally and internationally, to regulate relations between governing institutions within the authoritarian regime, and to preserve their legacy at the end of military rule. Consequently, although the era of military rule in Latin America has now ended, with most countries since 1990 established as constitutional democracies, the influence of these practices remains. The legacy persists most clearly in a presidential system that, through a “winner-takes-all” process, exacerbates rather than alleviates political tensions,6 in a weak judiciary that cannot protect basic rights,7 and in a military power that has come to conceive itself as the guardian of the constitution.8
The Latin American experience throws up a more general question about the modern constitution. The template of emergency powers in these constitutions was borrowed from European models, has been widely adopted across the world, and has been acknowledged as a critical element not only of classical constitutionalism but also of Ordo-constitutionalism.9 It therefore raises questions about the meaning of “the rule of law” under the modern constitution and the way that idea evolves under the total constitution. The distinction between normal and exceptional conditions has been accommodated in modern constitutional thought, as has the idea that, in exceptional situations, aspects of the rule of law might have to be qualified. But can this distinction persist in a world of the total constitution?
The classical doctrine of constitutionalism was devised on assumptions drawn from late-eighteenth-century conditions. One was that within the tripartite division of power, the legislature was likely to be the most dangerous branch.10 Another was that the burdens of government would not be especially onerous. A third was that with the emergence of the age of commerce, warfare would decline, conflict would be replaced by trade, and constitutional democracies would exist in a hospitable world.11 Each of these assumptions proved ill founded. The rapid pace of modern social and economic change led to a dramatic extension of governmental functions. With the challenges of maintaining the security of the total state against the threats of war, economic crises, natural disasters, and epidemics, the government had to shift to an administrative mode. Administrative rationality became the logic of modern government. As Weber said, “everything else has become window dressing.”12
Designed for a world of peace and limited government, the “normal” workings of constitutional democracies have often been strained when confronted with crises and emergencies. Emergencies can arise from many sources. Natural disasters, foreign threats, serious policy failures, or economic collapse may not always lead to crisis in the sense of a governmental inability to act or the perceived illegitimacy of governmental action. But responses to emergencies commonly require extraordinary executive action in situations that cannot be controlled by legislatures and courts. The dilemma is that facing an emergency, a constitutional democracy cannot avoid adopting exceptional measures, yet it cannot survive if those measures permit unbridled executive action. This is the dilemma of norm and exception: How can exceptional executive powers be granted without normalizing them and thereby converting constitutional democracy into an authoritarian regime?
Writing on the cusp of modernity, Locke was one of the earliest scholars to address this issue. As an advocate of keeping legislative and executive powers in separate hands, he is regarded as a pioneer of classical constitutionalism. But recognizing that the government is entrusted with a distinct set of powers, he also argues that these must include discretionary powers to act “for the publick good, without the prescription of the Law, and sometimes even against it.” This enables the government to respond to an indeterminate range of risks that cannot be regulated by general rules. Locke’s argument accords with the logic of norm and exception. The “normal” sovereign authority is the legislature, which holds the supreme power of rule-making. But because life cannot be governed entirely by general rules, the executive must have “an Arbitrary Power in some things left in the Prince’s hand to do good.” Acknowledging the two-sided character of the state, Locke sought to reconcile reason with necessity, adherence to law with pursuit of the common good, maintenance of the norm with accommodation of the exception.13
These tensions become ever more acute in the modern era. If, as Paine indicated, the constitution must contain the complete set of governmental principles, what provision is made for exceptional action during an emergency? Among the American Founders, we find Jefferson thinking along similar lines to Locke. “A strict observance of the written laws is doubtless one of the highest duties of a good citizen,” he notes, but “it is not the highest” because the “laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”14 Jefferson’s speculations became issues of intense practical significance during the 1860s when the American republic faced the prospect of secession and civil war.
Confronted with armed rebellion in the southern states, President Lincoln had to decide whether Jefferson was right and, if so, what was required. Following the fall of Fort Sumter on 13 April 1861, he called a special session of Congress but scheduled it to convene only on 4 July. In the intervening eleven weeks, acting alone and without clear constitutional authority or precedents, he took dramatic action. For Lincoln, maintenance of the Union was more important than adherence to the Constitution, and this licensed him to take action beyond the executive powers conferred by Article II. In a series of proclamations he summoned the militia of several states to help suppress the rebellion, blockaded the ports of seceded states, called on volunteers to serve in the regular army for a period of three years, and ordered the suspension of the writ of habeas corpus in the vicinity of any military action.15 Most of these measures, based on powers within the authority of Congress, were unconstitutional, as was Lincoln’s disobedience of Chief Justice Taney’s ruling that suspension of habeas corpus was beyond presidential power.16 But by the time Congress convened, Lincoln had set in place “a complete program—executive, military, legislative, and judicial—for the suppression of the insurrection.”17
When Congress did meet, the president explained his actions, arguing that they were either legal or required by public necessity, and invited Congress to ratify them. “Are all the laws, but one, to go unexecuted, and the government itself, go to pieces,” he declaimed, “lest that one be violated?”18 Presented with this fait accompli, Congress could only register approval of the president’s measures. A year or so later, the Supreme Court upheld the legality of the blockade, stating that the question of whether the president was justified in regarding the insurrection as the action of belligerents was a matter for the “political department of the Government.”19
Clinton Rossiter suggests that Lincoln’s actions exemplify one of history’s most important manifestations of what he calls “constitutional dictatorship.”20 Daniel Farber cautions that Lincoln “was not arguing for the legal power to take emergency actions contrary to statutory or constitutional mandates” but only that, while unlawful, these actions “could be ratified by Congress if it chose to” and that they remained “morally consistent with his oath of office.” Lincoln chose the lesser of two evils, Farber explains, and it is only by reading them out of context that we can claim they stand for some more general proposition.21
Rossiter’s use of the term “dictatorship” in describing the exercise of presidential power in a constitutional democracy is controversial. Dictatorship suggests that government is above rather than subject to the law, making “constitutional dictatorship” an oxymoron. His usage is drawn from the ill-fated German Republic. When the Weimar Constitution was adopted, the notion of law as the command of the sovereign power had apparently been replaced by a higher-order arrangement of modern constitutional law. But because of volatile circumstances surrounding its adoption, Article 48 of the Constitution gave the president broad powers of action, including suspension of basic rights, if “public security and order are seriously disturbed or endangered.” Owing to the economic and political upheavals of the period, the power to rule by decree was extensively invoked.22
Carl Schmitt was maturing as a constitutional scholar during these turbulent times. In 1921 he published a historical study of dictatorship from its Roman origins to its role in the Weimar Constitution. His thesis was that modern dictatorship was changing from a commissary function, in which a mandate is given to suspend the constitution in order to preserve it, into a sovereign dictatorship with powers beyond an interposing constitution.23 Following this, he wrote a more polemical account of sovereign power, opening with the dramatic claim that: “Sovereign is whoever decides on the exception.”24 Schmitt argued that despite the tendency of all modern constitutional development to seek elimination of the sovereign, this could not be realized. Constitutional norms might regulate public action in normal times, but they could not govern during exceptional circumstances when constitutional norms must be displaced to protect the constitution of the state.
Schmitt’s point is that whether a state of exception exists is a political decision, a decision of the sovereign power. Constitutionalism might contemplate the death of the sovereign, but that is impossible. Arguing that “the exception is different from anarchy and chaos” and that “order in the juristic sense still prevails even if it is not of the ordinary kind,” Schmitt is describing a type of commissary dictatorship. If the written law is displaced, it is because the state “suspends the law in the exception on the basis of its right of self-preservation.”25 That normativists are blind to this point, Schmitt argues, is a serious weakness. They too readily assume the authority of the enacted normative order and cannot explain how that order can suspend itself. How is it logically possible, he asks, “that the norm is valid except for one concrete case that it cannot factually determine in any definitive manner?”26
Unable to account for the distinction between norm and exception, Schmitt argues that liberal constitutionalists try “to regulate the exception as precisely as possible” and “to spell out in detail the case in which law suspends itself.”27 This is precisely how Rossiter approaches the task. Rossiter offers many criteria for controlling the institution, operation, and termination of the state of exception. It should not be initiated unless indispensable to the preservation of the state and its constitutional order. The decision to initiate should not be made by those who will hold these exceptional powers. At the moment of initiation, a specific provision must be made for its termination. All uses of emergency powers should comply with legal requirements. No rights or procedures should be altered any more than is necessary, and no adopted measures should be made permanent. Powers should be exercised by representative officers who retain ultimate responsibility for emergency actions. The decision to terminate the emergency should not be made by those exercising emergency powers. And none of these powers should extend beyond the end of the crisis when the antedating constitutional arrangements immediately apply.28
Some of Rossiter’s criteria are sound prudential precepts. They reveal, for example, why Latin American practice, especially in giving the military a role as constitutional guardian, fails to prevent a commissary function from becoming a sovereign dictatorship. Other criteria, such as compliance with legal requirements or that infringements should be no greater than necessary, are either too vague for any practical guidance or exercises in wishful thinking. None directly addresses the jurisprudential question Schmitt raises.
Successive waves of Islamist terrorist attacks from 11 September 2001 onward made these questions once again prominent. Many have followed Rossiter’s method, seeking precise criteria for invoking and constraining emergency powers. Highlighting the threat to civil liberties imposed by emergency regimes, for example, Ackerman argues for short-term emergency measures only. These should impose strict limits on unilateral executive action and powers of detention and provide for extensions of the measures only after legislative approval by an escalating supermajority.29 More radically, Oren Gross argues that the adoption of what he calls an “extra-legal measures model,” in which violation of constitutional norms is sanctioned, might serve the protection of those norms better than the accommodations that are commonly made to deal with emergencies and that end up eroding the standing of constitutional norms.30
These reprise earlier debates, but one important limitation of recent proposals is a tendency to be formulated with terrorist threats in mind. Seeking to minimize the impact of special powers of detention on civil liberties, they treat the question of emergency powers too narrowly. The challenge raised by emergencies extends way beyond terrorism to include economic matters such as the 2008 financial crisis as well as natural crises caused by hurricanes, tsunamis, and pandemics. In this wider context, any attempt to define an emergency powers regime that ensures the crisis period is limited and normal conditions are quickly restored becomes a much more complex undertaking.
In the face of these growing challenges, constitutional lawyers apparently continue to be guided by the model of classical constitutionalism. Yet the issue of how to design governmental powers to address emergencies is only tenuously related to tensions between executive and legislature in the conferral of powers or between executive and judiciary over how those powers are exercised. In the world of the total state in which risks—economic, political, natural, ecological, technological—are rapidly increasing, the challenges are unlikely to be resolved by falling back on classical constitutionalism. The implications of incorporating emergencies within the framework of the total constitution have not yet been adequately addressed.
The jurisprudential issues presented by addressing emergencies in the context of the total constitution are only now coming to the fore. In a world in which every aspect of social life can be constitutionalized and no disputes fall outside the framework of constitutional norms, there can be no room for a regime of exception. This presents a new challenge that normativists embracing the total constitution must address.
The challenge is taken up by David Dyzenhaus. Acknowledging that the norm-exception distinction skews the debate about emergencies, he accepts that no true legal order can make room for a regime of exception; a legal order that compromises is not only morally but also legally compromised. Dyzenhaus argues that the essential criterion of governmental legitimacy is adherence to a universal rule of law project. The critical issue in emergencies is not to maintain a separation of powers or establish appropriate checks; it is to ensure that all public institutions—not just the judiciary—protect the “fundamental constitutional principles” that are “inherent in the constitution of law itself.” In rejecting the norm-exception distinction, Dyzenhaus also rejects all versions of the two-sided theory of the state: “the state is totally constituted by law.” Consequently, we face a stark choice between “government under the rule of law and government by arbitrary power.” For constitutionalists, the distinction between norm and exception is analogous to that between legitimacy and illegitimacy.31
When Dyzenhaus switches from theory to practice, however, his analysis becomes much more ambiguous. He recognizes the need for special regimes provided that “there is both an absolutely explicit legislative mandate for such experiments and that the experiments be conducted in accordance with the rule of law.” Criticizing Rossiter’s account for relying on a “hope” that those exercising emergency powers will return to the ordinary way of doing things as soon as possible, he nevertheless argues similarly that judges should simply use “the legal protections provided as a basis for trying to reduce official arbitrariness to the greatest extent possible.” In endorsing experiments that balance security and rights, so modifying normal legal procedures, Dyzenhaus moves away from a strict conception of legality to a sense of legality appropriate to the circumstances. In place of strict legality as the norm and arbitrary power as the exception, his abstract appeal to a “spirit of legality” incorporates a proportionality calculation that normalizes the exception.32
Criticizing Dyzenhaus’s argument as being “grounded in a Kantian ethics made up of synthetic a priori moral propositions,” Nomi Claire Lazar presents an alternative theoretical framework founded on an “ethics of experience.” Recognizing that virtually all rights claims are now subject to proportionality assessment, she extends that principle to emergencies. Arguing that emergency regimes show “salient continuities” with normal situations, she maintains that the exercise of emergency powers “are justified, when they are justified, because they embody principles that already function under normal circumstances.” The state, Lazar concludes, cannot be ruled by law alone, not least because “the rule of law” is only ever a matter of degree.33
These differences reflect different jurisprudential traditions of law and the meaning of the rule of law, but they now erect barriers to understanding. No jurist maintains that there can be a regime of exception that is entirely norm-free. In the early modern period, it was accepted that when urgent action was required, it was not unjust for the ruler to take actions contrary to law, a claim formalized as “reason of state.”34 But by this jurists meant free from formal written rules, not a sphere of entirely arbitrary action. In this respect, Schmitt, like Locke, argues that to protect the state—that is, the constituted order—the written law may have to be displaced. But he does recognize that in responding to emergencies, “order in the juristic sense still prevails.” Lazar’s position is close to the orthodox view that once a state has adopted a constitution, there can be no regime free from institutional review, but circumstances exist in which the rules may need to be qualified. This is analogous to what Carl Friedrich in 1957 calls “constitutional reason of state.”35 And Dyzenhaus, implicitly accepting the idea of the total constitution, argues that all governmental action must be governed by some ineffable “spirit of legality.”
These arguments circle around the critical issue. Dyzenhaus rejects the norm-exception dichotomy but in doing so presents a crude account of Schmitt’s argument, claiming that Schmitt believes that “emergencies are a black hole.” He then simply replaces these with “grey holes,” combined with a plea that judges must maintain oversight.36 Lazar adopts a similarly unrefined approach, arguing that “Schmitt’s conception of sovereign dictatorship is impossible” and that it is “as abstract and unworkable as [Dyzenhaus’s] liberal ideal theory.”37 The critical task surely must be to move beyond invocations to “the rule of law” and “constitutional reason of state” and directly examine the reason of the constitutional state. If norm-exception does not work, “experiential ethics” is a fudge, and “spirit of legality” is a retreat into abstraction, can a more appropriate formulation be found?
In the era of the total constitution, reason of state is absorbed into constitutional reason. The constitution now regulates the procedures both for declaring a state of emergency and for judicial control of its processes.38 Since the process is now institutionalized, it is no longer simply a matter of the ruler’s conscience. Governments cannot now claim the authority to act unlawfully, even for what Friedrich calls “constitutional reasons of state.” They either invoke formal constitutional procedures, such as a state of emergency, or they exercise broad discretionary powers conferred on them by legislation. In either case, governments make no claim to act by virtue of necessity, emergency, or higher good; they invoke an already existing lawfully conferred power. In the total constitution, the exception, being constitutionalized, is normalized.
In this totalizing era, a new species of law is emerging that advances the “invisible constitution” as the overarching edifice of legality. This is constitutional legality, a type of super-legality that is depersonalized, abstract, and ahistorical. It begins to emerge as the constitution, having acquired the status of “higher law” with the judiciary its authoritative interpreter, becomes the expression of a society’s fundamental principles. In the total constitution, all public authority emanates from and is conditioned by the written constitution; there can be no sovereign beyond it. But it is no longer just a system of rules; it is a set of abstract principles, an “invisible constitution” that articulates the values of social order. And, crucially, the constitution no longer derives its authority from the constituent power of the people who adopted the text; once that historical link is broken, the constitution is treated as an order of values that evolves as social conditions change.
The modern idea of law as a system of rules enacted by the legislature still performs an extensive regulatory function. But it is overlaid by a new species of law—constitutional legality—that shapes the entire regime. Ordinary law—legislation—is a product of will, while super-legality evolves through an elaboration of reason. Legality is determined by explicating “the invisible constitution.” Political disputes are managed by applying the principles of super-legality. And all governmental action, including legislation, is subject to a principle of objective justification: Can the measure in question be justified as necessary and proportionate?
Normativist jurists see the emergence of constitutional legality as an entirely progressive development. But it is far more equivocal. Although its implications are only now coming to the fore, constitutional legality was built into the foundations of constitutionalism. Consider, for example, Hamilton’s contention in Federalist 23 that because the government is entrusted with the safety and well-being of the state and the factors that endanger this are infinite, the president’s powers must be given a generous interpretation. “No constitutional shackle can wisely be imposed on the power” because failure to confer enough power would be “to violate the most obvious rules of prudence and propriety” and “no precise bounds could be set to the national exigencies.” Maintaining that “a power equal to every possible exigency must exist somewhere in the government,” Hamilton concludes that, if not otherwise specified, that power is the president’s.
Hamilton never countenanced the possibility that governmental power could be exercised contrary to law or that special regimes should be created to deal with emergencies. For him, the Constitution conferred broad executive discretionary powers to act proportionately to perceived threats. The question of whether extraordinary executive powers are constitutional has since provoked intense debate, but under a total constitution there can be no doubt. Reason of state has been institutionalized and the exception normalized.
Contemporary constitutionalism envisages a regime of governing according to law. But the concept of constitutional legality makes this an indeterminate prospect. Government cannot act in direct contravention to law simply because the institutional safeguards of the constitution do not permit it. But legislatures now delegate broad powers to executives not only to deal with emergencies but also to act in a general regulatory capacity, and the principle of “proportionate empowering” confers wide latitude to take whatever action is deemed necessary. Through a wide range of mechanisms, governments now play a major role in enacting, shaping, interpreting, implementing, and reviewing legal rules and determining the government’s own legal responsibilities.39 In this process, legal principle and political necessity become fused.40
In the era of the total constitution, government according to law no longer means governing subject to independently promulgated formal rules. It means governing in accordance with abstract principles of legality whose explication is as much a political as legal exercise, as much a governmental as a judicial undertaking. Abstract principles acquire meaning only when infused with values, with no rational method existing for choosing between contestable values claiming to be the best iteration of the principle. The rule of law no longer means conformity to rules; it requires a judgment on whether liberal principles of liberty and equality can be reconciled with claims of necessity and security. Constitutional legality emerges as a powerful and intensely contestable political phenomenon.