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

• Published in: The Yale law journal 2003-03, Vol.112 (5), p.1011-1134
• Main Author: Gross, Oren
• Format: Article
• Language: English
• Subjects: Constitution; Constitutional law; Constitutionalism; Counterterrorism; Democracy; Emergencies; Emergency powers; Government; Government crises; Government officials; Human rights; Law; Law and order; Legal systems; Legislation; Management of crises; National security; Political violence; Racial profiling; Rule of law; September 11 terrorist attacks-2001; State of emergency; Studies; Terrorism; War
• ISSN: 0044-0094; 1939-8611
• DOI: 10.2307/3657515

This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. The "Extra-Legal Measures" model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation in the face of calamity provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide how to respond to such actions. The actor may be held to the wrongfulness of her actions and required to make legal and political reparations. Alternatively, the people may act to approve, ex post, the extralegal actions of the public official. The process leading up to such ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the two issues-action and ratification-the model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. While going outside the legal order may be a "little wrong," it is advocated in the Article in order to facilitate the attainment of a "great right," namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethical concepts of political and popular responsibility, morality, and candor.