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date: 28 June 2022

Abstract and Keywords

States of emergency may play a unique role in constitutional practice and theory. A comparison of constitutional orders reveals that they have to choose between seeking to entrench in a written constitution, if they have one, rules about how the state may respond to an emergency, and leaving such responses to be decided as and when an emergency occurs. This article sets out some examples of constitutional design and looks at some examples of constitutional practice show the basis for the Schmittean view of states of emergency and their implications for constitutionalism. The ramifications of this issue go far beyond states of emergency, a phenomenon of which lawyers and political scientists in the United States are well aware as they seek to deal with the way in which the office of the president and the executive in general seem increasingly free of constitutional and legal constraints. But the examples hardly tell unambiguously in favour of Schmitt. Indeed, they might serve to show that the constitutional choice is not between various institutions — the executive, the legislature and the judiciary — but between a vacuous or merely procedural account of legality and one that links procedure to substance. Moreover, the latter requires that all three powers work together in ensuring that responses to emergencies accord with constitutional principles.

Keywords: constitutional practice, constitutional theory, constitutional design, Schmitt, constitutionalism

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