Article 48 and the U.S. Constitution

Sandy Levinson

This is intended to build on Jack's most recent posting. What is at stake, I think, is the creation of a de-facto "emergency powers" Executive. The Weimar constititution was much cricized because of Article 48, which allowed presidential invocation of emergency powers. Some attribute it to the downfall of the Weimar state (and, therefore, to the rise of Hitler). I think it is actually considerably more complex than that. A number of constitutions around the world have explicit emergency powers procedures, and Bruce Ackerman's most recent book, Before the Next
Attack, calls for the passage of "framework legislation" that would allow us to respond to what he believes will be a "next attack" without simply and utterly sliding into presidential (or presidential/military: one wonders how long the military will allow incompetent leaders like Bush to destroy their institution, especially if we're facing a "real" global war on terror instead of the manufactured-for-the-next-election variety). Perhaps if a "delcaration of emergency" were treated more like a "declaration of war," with attendant drama and public debate, we'd be better off than we are now, where we don't differentiate between "emergency powers" legislation and "ordinary legislation."

What is so dismaying about the present situation, in some ways, ways, beyond the incursions on basic liberties noted by Jack, is the "weimarization" of Congress (as I've written on numberous--perhaps too many--occasions, where the Republican Party, when all is said and done, views itself as the lackey of "their" President and the Democrats are scared of being portrayed--as by the House Majority Leader--as caring more about terrorists than about Americans. There is precious little "deliberation" and much posturing. Maybe Lindsay Graham and John McCain will have the courage to stick it out, but McCain has already been selling his soul in order to appeal to the hard-right Republican "base" (and to get the Bushies' blessing) and Graham is, to put it mildly, far from an ardent civil libertarian.

I am, not for the first time, put in mind of Justice Curtis' plaint against Lincoln's exertions of Executive power, including a constitutionally dubious Emancipation Proclamation: "Among all the causes of alarm which now distress the public mind, there are few more terrible than the tendency to lawlessness which is manifesting itself in so many directions. No stronger evidence of this could be afforded that the open declaration of a respectable and widely circulated journal, that 'nobody cares' whether a great public act of the President of the United Sttes is in conformity with or is subversive of the supreme law of the land...."
Posted 4:45 PM by Sandy Levinson [link]