"Small Emergencies" by Kim L. Scheppele
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Publication Date

2006

Abstract

In this Comment, I argue that the "normal" American constitutional order can be seen as thoroughly shot through with emergency law and that this constant sense of emergency has fundamentally shaped the possibilities of American constitutionalism. America is now-and has been since the First World War-virtually always in a state of emergency, one way or another. Sometimes these states of emergency have been local, other times they have been federal, and still other times they have been international. Sometimes these states of emergency have been political; other times they have been economic or social. Sometimes these states of emergency have resulted from weather, "natural" disasters, accidents and engineering flaws; other times, they are invoked in response to more deliberate and hostile threats-some immediate, some merely speculative. American presidents have been quite indiscriminate when it comes to emergencies--declaring them day in and day out in a variety of forms. If there is a panacea in the future to which American constitutional history points when emergencies will no longer be necessary and when we can return to a secure sense of divided and limited government, it seems to be as remote an ideal as socialism was in the Soviet Union. Nonetheless, many Americans-being a more optimistic lot than Russians and their former Soviet partners-still believe that they are moving toward an ever-more-perfect constitutionalism. The more realistic view is that emergencies are endemic to the American constitutional order, which has absorbed and rationalized them within the system of public law rather than holding them outside normal governance. In many ways, this is consistent with Levinson's argument, which warns darkly of the "permanent emergency."

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