Balkinization: Toward a Discouraging Convergence? Liberal Constitutionalism in the Age of Permanent Emergency

Toward a Discouraging Convergence? Liberal Constitutionalism in the Age of Permanent Emergency

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Constitutional Crises, convened as part of LevinsonFest 2022.

So we come to the very end of the “Levinsonfest” that began roughly a year ago first on Zoom and then in more permanent form on Balkinization. As before, I want to thank Richard Albert, Ashley Moran, and Trish Mair for providing both the inspiration for the collective occasion and, in Trish’s case, the literally indispensable technical acumen to make it all happen with astonishing smoothness across many time zones and, in some cases, continents. And, of course, I remain grateful to Jack Balkin, whose invaluable blog Balkinization has just celebrated its 20^th anniversary, for offering the opportunity to provide a permanent record of the various sessions.

It is perhaps especially fitting to conclude by addressing perhaps the most central problem facing anyone committed particularly to liberal constitutionalism. On can, I think, define that enterprise in large measure as trying to square the circle of first empowering governments to achieve admirable ends, such as providing for the general welfare or establishing justice, while at the very same time establishing guardrails that protect the public against a variety of governmental overreach and, ultimately, the potential for what is often labeled “tyranny.” It is important to recall that the Preamble to the United States Constitution explicitly views providing for the “Common Defence” as equal in priority to the other two noble aspirations quoted above. We have, almost from the beginning, been aware of potential costs of giving priority to this last goal, not to mention potential dangers presented by demagogues whose use of what in some contexts would be “sincere” albeit debatable arguments is simply a cover for their own will to power. But one does not have to be a thoroughgoing Hobbesian in order to realize that it is impossible to deny the importance of protecting the polity against threats. Quite obviously, it is the presence of “emergencies” or what the 18^th century Founders of the U.S. Constitution often called “exigencies” that call into question this liberal hope for a “Goldilocks point” between governmental power and sufficient protection of popular liberty or achieving social justice.

I am utterly delighted to have three old-friends (and intellectual influences), Jack Balkin, Keith Whittington, and Kim Lane Scheppele, as the presenters of their own views about the problem. I have truly been standing on the shoulders of giants throughout my own career, and it is a special pleasure to have some of them participating in person!

I begin with a hoary chestnut in jurisprudential theory: The problem of “no vehicles in the park.” As many readers no doubt remember, it refers to a hypothetical city ordinance and is designed to elicit from students various theories of interpretation. Does, for example, the ordinance prohibit bicycles (or unicycles)? In answering this question, do we simply read a dictionary definition of “vehicle” or, instead, try to assess the likely purpose of the ordinance and the degree to which bicycles, unicycles, or, indeed, baby buggies, come within the ban issued, we presumably would all agree, against automobiles. Though even with them, there is always the possibility of constructing a monument designed to honor brave soldiers during a war, in which a potentially-functioning jeep is placed atop a pediment. I suspect that most professors who assign the problem end up endorsing purposivism and reject a wooden textualism.

So now consider an individual faced with taking a sick child or spouse to an emergency room at 2 in the morning, where the quickest route to the hospital involves driving through the park at a significant speed. Should the individual refrain from doing so upon seeing the ordinance at the entrance to the roadway through the park (perhaps complemented by permission for “official” vehicles travelling no faster than 30 m.p.h.)? Should the police be commended for arresting the anxious driver? Should the prosecutor press charges, and should the judge or jury convict? There can be no doubt at all that the car is precisely the kind of “vehicle” banned from the park, and the potential danger presented by automobiles would be even more obvious were, say, the trip to the hospital taking place at 2 in the afternoon. Yet the driver asserts what criminal lawyers would call a “necessity” defense, in which even the most ostensibly clear statutes are nonetheless inoperative when a sufficiently good reason is presented for disobedience. Once might also think of “compelling state interest” arguments that justify deviation from what appear to be categorical prohibitions set out in the Constitution. We all know, for example, that “no law” in the First Amendment is basically the beginning, rather than the end, of a conversation, especially if the state is trying to defend an abridgement of freedom of speech or expression by citing its duty to protect the public against significant threats. Think only prior restraints against the publication of troop movements during a time of war.

To what extent does law, whether in the form of constitutions or even local ordinances similar to “no vehicles in the park,” recognize the possibility that “necessity,” as “the mother of invention,” will demand exemptions from what might be thought to be operative legal commands? If a constitution is perceived as “rigid” in its meaning and applications, does this almost guarantee the likelihood of “constitutional crises” when “emergencies” generate necessity arguments in favor of overriding the presumptive constitutional commands? As Jack Balkin suggests, one can distinguish emergencies from constitutional crises if the former are not perceived as presenting any genuine problems for the continued overall operation of the constitutional system because the constitution presents a tolerable way of handling emergencies even if that means some adjustment—or even suspension—of ordinary legal rules. One might imagine an “emergency” as requiring only that one change the “gears” of an operating system to its “emergency” mode that is built into the system. But what if there is no such gear? Then what? How are decisions made if a constitution—designed to “channel conflict and struggles for power into legal and constitutional reforms”—seems inadequate to the actual occasion?

As he also suggests, mere disagreement about what a constitution—or local ordinance—means is not enough to generate a crisis, though disagreement always generates the question as to how differences will be resolved. Most obviously, will there be an institution (or adjudicators) who will offer a decision that will be thought to “bind” the losing party? Or, instead, will the losers be “bad sports” or “sore losers” who will engage in civil disobedience or, perhaps, decidedly uncivil actions ranging from riotous demonstrations to attempted takeovers of the now-discredited government, perhaps accompanied by attempts to rewrite the failed constitution?

What sorts of emergencies—and attendant crises—face us at present? Are they more likely to be acts of commission or of omission? That is, one can easily imagine crises generated by what we might describes as “overreaching” by the actors in question. This is a term often applied to executives; think only of the term “imperial presidency,” which obviously can apply as well to one’s unfavorite state governors. Donald Trump is an all-purpose illustration of executive authoritarianism, but we should recognize that the tension is exhibited as early as the Washington presidency itself, with its unilateral declaration of neutrality regarding the French and English conflict and the debate over the presidential removal power. Thomas Jefferson had well-founded doubts about the constitutionality of the Louisiana Purchase that he endorsed. Consider his well-known statement in an 1810 letter to John Colvin:

[A] strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. the laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property & all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

It is difficult not to agree with Jefferson, though one can be perplexed by the suggestion that doubling with size of the country and expanding into the Dakotas and Montana was required to save it. Indeed, we know, from hindsight, that it was the fundamental cause of the American Civil War, with the death of 750,000 persons, inasmuch as it was triggered not by slavery per se, which Lincoln was more than willing to tolerate in the states where it already existed, but, rather, by the terms by which “settlers” would be allowed to take effective possession of the vast new territories gained from Napoleon. Moreoever, it assured what I have taken to calling our own “hundred years war” generated by the resistance of Indigenous Nations to the conquests necessary to make what William Freehling called “the Midwest Purchase” more than a formal reality. As Jack and I wrote in yet another of our joint essays, on “constitutional dictatorship,” we might legitimately wonder about who in particular should declare that the country is in fact “in danger” and, therefore, that “scrupulous adherence to written law” should in effect be suspended in favor of obedience the “highest law” emphasizing “self-preservation.”

Jefferson was, in his own way, echoing the statement of his good friend James Madison, in Federalist 41: “It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” A central message of Madison can be summarized as follows: Beware of “parchment barriers,” which will rarely serve as the “guardrails” they are intended to be when what we today call “existential crises” present themselves. On such occasions, “necessary usurpations of power” will almost always seem preferable to almost literally thoughtless adherence to the rules laid down.

Perhaps it is indicative of the age we now live in that such “existential crises” seem to be more ever-present. At this current moment (on May 1, 2023), for example, we are faced with the possibility of an international financial meltdown should the United States not honor its debts because of the refusal of Congress to raise the debt ceiling. (To be sure, there are proposals for simply ignoring Congress, either by reference to Section 4 of the Fourteenth Amendment or through minting a trillion dollar platinum coin to be deposited in the Federal Reserve, which would, among other things, give new meaning to the term “fiat money.”) In addition, we are still living through the consequences of the worst pandemic in a century, and serious epidemiologists are well aware that the next pandemic—possibly avian flu, with its far higher mortality rate—is only a matter of time. As Tom Friedman has often insisted, the world has become remarkably “flat,” which means that contagions that begin far, far away can quickly, given the miracle of modern transportation, reach all parts of the world in weeks, if not days. Then, of course, there is the phenomenon of what appear to be ever-more serious and costly hurricanes and floods. Several countries, including Bangladesh, face truly existential questions of survival. The United States is faced “only” with the question of whether Miami, New York, or Boston will survive in anything near their present form given predictable rises in sea level or whether New Orleans will be worth rebuilding after the next Level 5 hurricane. These various crises, of course, do not even include standard-model “national security” crises like that allegedly presented in 1962 by the presence of Soviet missiles in Cuba or later military adventures in Vietnam or Iraq, not to mention the proxy war being conducted against Russia in Ukraine or the possibility of a war over Taiwan.

So we might speak the contemporary four horsemen of the apocalypse who represent military threats; natural disasters; public health emergencies; and threats to basic financial stability, all of which can keep us up at night at the present time. (Moreover, there is the particular apocalyptic threat of the return to the White House of the sociopathic Donald J. Trump or his would be successor Ron DeSantis, certainly analogues to Hungary’s Victor Organ, who so haunts Kim Scheppele’s nightmares and analysis of contemporary constitutional “Frankenstatism.”)

Jack also increasingly emphasizes a crucial cultural dimension of contemporary constitutionalism, perhaps particularly, but certainly not exclusively, American, what he calls “constitutional rot.” Montesquieu emphasized that what he called a “republican” government, based on popular assent, required a “virtuous” disposition on the part of its citizenry. This is defined as a willingness to put the “public good” ahead of one’s selfish—or, in Madison’s term, “factional”—interest. One might well regard this as a utopian hope—or delusion. Egoistic liberalism, especially in its “libertarian” form, ultimately leads to the triumph of the Holmesian “bad man,” who regards law as setting out only a price system for its non-compliance. It otherwise generates no internal sense of legal obligation, even if one has engaged in now entirely ritualistic “oaths” pledging compliance. How one overcomes the particular crisis created by a rotten political culture is unclear. I have spent much of the past two decades bewailing structural deficiencies in the U.S. Constitution, and I continue to support the idea of a new constitutional convention devoted to constitutional reform or even transformation. But I do not believe that would be sufficient to overcome our profoundly diseased condition, even if it is necessary.

Keith Whittington is another long-time student of constitutional “crises,” though he cautions against overuse of the term. He offers as his test the inability of a “constitutional system ... to function.” Quite obviously, the United States continues to function in many important ways. The United States is in no serious sense a “failed state,” though it’s declining credit rating by Standard and Poor’s in 2011 took note of diminished confidence in the dependability of the American political system to meet financial exigencies. Contemporary polling data offers a chastening picture of the degree to which most Americans have (justifiably) lost confidence in our national political system. It has literally been years since most Americans have believed that the country is heading in the right direction. An April 21, 2023 poll by the Wall Street Journal had only 15% of the respondents believing that it was headed in the right direction; 75%, on the other hand, were more pessimistic. A Harvard-Harris poll on the same day showed “only” 61% believing that we were headed in the wrong direction, and 31% were optimistic. The only national institution that seemingly elicits “confidence” from the public is the military. Congress, President Biden, and the U.S. Supreme Court are all now below 50% in “approval.”

Whittington is a far more careful political scientist that I sometimes tend to be. He notes that he had previously defined “crisis” along two dimensions: Were “important political disputes” in fact being “resolved within the existing constitutional framework”? Should the U.S default on its debt, presumably all political scientists, regardless of their place on the ideological spectrum, would agree that the answer is “no.” A second dimension is whether “constitutional fidelity” comes into question because “important political actors are no longer willing to abide by existing constitutional arrangements or systemically contradict constitutional proscriptions.” This certainly seems to describe Donald J. Trump and the most truly “deplorable” part of his pollical base, who seem to regard his indictment(s) as akin to political merit badges rather than a stain on his character and fitness for public office.

But Whittington now adds a third dimension, albeit “reluctantly,” which has to do with the phenomenon of “bad faith,” in which “political actors refrain from repudiating the inherited constitutional system but nonetheless subvert it by only giving lip service to constitutional requirements.” This appears similar to Mark Tushnet’s notion of “constitutional hardball,” typified, perhaps, by Mitch McConnell’s stalwartly first refusing even to consider President Obama’s nomination of Merrick Garland to succeed Antonin Scalia on the Supreme Court and then his pushing through Amy Barrett’s almost literally last-minute (before the 2020 election) nomination to succeed Ruth Bader Ginsburg. Did he (and the GOP) behave “unconstitutionally”? Probably not, especially if one is a textualist. (Thus the continuing importance of “no vehicles in the park.”) However, did they subvert the constitutional order and make it impossible to consider them as anything other than power-hungry Schmittians willing to do whatever “necessary” to maintain political power? Probably yes. But, obviously, this is a political judgment that might not lend itself to the kind of political “science” that Whittington hopes for. He wishes, after all—and it is hard to disagree with him—to rescue the notion of “constitutional crisis” from an “inherently subjective” notion that “exist(s) only in the eye of the beholder, a way of describing political actions that one’s opponents engage in.”

Whittington has clearly identified a genuine phenomenon, or perhaps one should disaggregate it into two connected phenomena: the first is the existence of analytically-demonstrable bad faith; the second is the increasing prevalence of accusations of bad faith, which will almost undoubtedly be “over-inclusive” with regard to capturing the “actual” occurrences of the phenomenon. But it is obvious that the more that political adversaries are unwilling to credit the “good faith” of adversaries engaged in inevitable constitutional disagreements, the less able the constitutional system will be able to provide resolutions. These depend, after all, on the losers being “good sports” and waiting for the next election (whose results they will presumably trust).

Whittington’s concluding comments strike a particular chord with me, inasmuch as he suggests that “[p]art of what makes infidelity rare is that the United States has traditionally had a robust culture of constitutional veneration.” My first book, Constitutional Faith, originally published in 1988, examined that culture from a somewhat detached analytic perspective, among other things contrasting Jefferson’s and Madison’s views on the importance (or dangers) of such “veneration.” When published in a second edition, in 2011, I included a long afterword explaining my own loss of “constitutional faith” and, therefore, opposition to the notion of continued veneration. I now such veneration as seriously disserving the United States with regard to understanding the extent to which the Constitution was at least as much an impediment as a source of solutions to the problems plaguing us as a polity.

Would a general rejection of veneration lead to a more candid, less bad-faith, discussion of our plight and potential solutions? Obviously, it is hard to know what the answer might be, but the suggested interaction between a sclerotic “veneration” and the manifestation of increased “bad faith” is certainly interesting and worth taking seriously. His last sentence is worth taking very seriously indeed: Are we more worried about “political actions [that] threaten a constitutional order that we want to sustain” or about the possibility of drastic action might be thought “necessary to leave behind a constitutional order that can no longer be justified”? I note, incidentally, that one’s answer to this question has obvious implications for the topic of the immediately preceding “Levinsonfest,” on “civic education.” What should the young be taught about our constitutional order, and why?

I turn now to Kim Lane Scheppele predictably valuable contribution to the discussion. She emphasizes the extremely important point (and reality) that contemporary “[e]mergencies in practice do not tend to look like the states of ‘no law’ or ‘legal suspension’ imagined by most theorists of emergency.” Many of these theorists, including myself on occasion, are much influenced by Carl Schmitt, who defined the “sovereign” as that entity who could declare states of emergency and in effect become a dictator, whether “commissarial” and committed to restoring the existing constitution after the emergency was over or a truly “sovereign dictator” who would freely transform the existing constitution in whatever way desired. No doubt that captured prior realities all too well, and one cannot be confident that it has become completely anachronistic. One might accuse my use of the “vehicles in the park” example of feeding the assumption that “normality” would on rare occasion be challenged by an “extraordinary” emergency, such as rushing someone to a hospital for (apparently) necessary treatment. Perhaps it is time to move away from that model, however helpful it might have been in the past.

Kim has been noting for years that many of those we identify as what might be called “illiberal authoritarians”—the most notable but, alas, non-unique, example being Victor Organ, a special focus of hers given her long-time experience in Hungary—are in fact very able lawyers, at least in one sense of that term. Their skill set includes producing much new law, often borrowed from certifiable “liberal” constitutional orders, that can be turned to illiberal and authoritarian ends. This, of course, is also the central theme of Ros Dixon and David Landau’s influential book on “abusive constitutionalism.” Consider, for example, the Obama Administration’s copious use of the “state secrets privilege” or extraordinarily crabbed notions of “standing” to avoid any judicial examination of American use of torture (paradoxically or not, in the previous administration of George W. Bush) or to rein in the use of drone attacks even on American citizens, not to mention its use of American anti-espionage law to go after American journalists who were publishing uncomfortable details about the actualities of what Jack and I have labeled the “surveillance state.” It is certainly understandable that unsavory leaders all over the world might be “inspired” by the American example and feel especially licensed to accuse Americans of hypocrisy should they bewail the export of such doctrines and actions.

Rulers can be very skilled in scaring their publics about potential emergencies whose occurrence is described as terrifying and who personally promise, by vigorous government action, to guard us against them. Just think of George W. Bush’s “global war on terror” in this regard or the widely-expressed fears, in the United States and throughout much of Europe, of “invasions” by immigrants and refugees who differ in culture from those who wish to remain in undisputed charge. Most of “us,” I suspect are quite open to use of the “precautionary principle” with regard to climate change, even if this ends up justifying quite extraordinary expansion of governmental powers and concomitant limitation of what have been viewed as “traditional” assertions of property rights.

Unfortunately, in the modern world, for reasons already expressed above, it is not difficult to summon up altogether rational fears and to suggest that enhanced state power is necessary to meet the challenges. Our general task would be far easier if in fact all evocations of potential emergencies were simply “fear-mongering” by unscrupulous demagogues. Unfortunately, that is not the case, which makes it especially important to think clearly both about what constitute genuine emergencies and what kinds of powers we wish to assign to government as a potential prophylactic. As already suggested, it is especially important to think about the specific individuals or institutions to which we might want to assign extraordinary powers, as well as the procedures by which those potential powers might be actualized.

Kim helpfully outlines what she calls the “emergency script,” which can serve both as a checklist for those seeking to augment their power and, all importantly, a set of warning signs that serve as grounds for suspicion. One might compare her analysis to some similar warnings found in Steven Levitsky’s and Daniel Ziblatt’s When Democracies Die. As with human beings and our own mortality, though, one must look at the entire biological process and not only at a single organ, however important it might be. Just as the ankle bone is ultimately connected to the backbone, so are all parts of government, particularly in the modern world, symbiotically connected to each other, whether as partners or adversaries. One can rail against executive overreach, for good reason, but in many cases that is a response to what appears to be a willful decline in the desire of legislators actually to make tough decisions. (Return to the possibility of a credit default because of the willful failure of the House to pass a “clean” bill.) But this is linked to crucial role of “party loyalty” in modern governments. As Richard Pildes and Daryl Levinson have pointed out, “separation of parties” may be more important than “separation of powers” in actually understanding the modern political reality in the United States and many other polities. Presidents now generally can expect almost literally mindless support from members of their own political parties, and opposition is often portrayed as merely “partisan.” Unfortunately, no one has figured out how to engage in backbone transplants or replacements for pusillanimous legislators who willingly kowtow to ambitious executives.

And, of course, executives, and their compliant supporters in legislatures, are all too willing to offer the “compelling interest” of meeting any given emergency as the rationale for cutting back on basic procedures, such as habeas corpus and other indicia of modern due process of law, or substantive protections of, say, freedom of speech or the press when they can be portrayed as potentially “subversive.” As already suggested, it may have been almost irrelevant that Barack Obama stayed away from George W. Bush’s “global war against terror” rhetoric, even as he continued to embrace many strong executive prerogatives when facing challenges in the courts.

Moreover, it is perhaps worth noting that the United States especially is faced with what many consider an exaggerated protection for freedom of “all expression” largely because America in fundamental ways is founded on a libertarian fear of governmental power per se. So an essential problem posed by “constitutional rot,” inasmuch as it often rests on the conveyance of misinformation and attempts to stoke up irrational fears, is whether that itself can be described as an “emergency” counselling enhanced state power or whether that cure is perhaps viewed as worse than the underlying disease.

Kim is one of the country’s (and the entire world’s) experts on comparative constitutional law. So consider in this context Article 10 of the European Convention on Human Rights, which treats “freedom of expression” and begins with the assertion that “[e]veryone has the right to freedom of expression. But then comes section 2 of the Article, which offers a variety of potential exemptions from the broadly stated right of section 1:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

It is, of course, tempting to contrast this with the barebones and seemingly more absolutist language of the First Amendment to the U.S. Constitution, with its seemingly categorical injunction against any abridgement of the “freedom of speech” or “press.” Even if we are well aware that this does not actually describe the American legal reality, which approach do we prefer, the European one that recognizes the need for restrictions “in the interests of national security” etc., or the American one that ignores such possibilities?

One suspects that Kim (and others) might view the adoption, in certain circumstances, of the text of Article 10 as an example of “abusive” rather than “liberal” constitutionalism. What is most illuminating, while at the same time challenging, about Kim’s cautionary concerns, is precisely that the examples of “abuse” are so often drawn from countries (and leaders) we might otherwise admire. A world divided between clearly recognizable liberals and tyrants is easier to deal with than one in which the enemies of liberal constitutionalism are themselves well-trained lawyers who can make skillful use of what they see occurring in “our” societies.

Many years ago, there was a great deal of emphasis on the “convergence” of apparently different kinds of political regimes because of the functional imperatives of adaptation to “objective” challenges posed by what was often called “modernization.” The triumphal days immediately after 1989—now more than a quarter-century ago—seemed to rest, in part, on an optimism that all the world was going to converge on a version of liberal (or, more accurately, neo-liberal) constitutionalism that would, for example, render NATO either irrelevant or expanded to include perhaps even Russia. Hungary and Poland both would stand as admirable exemplars of “democratization,” and a major issue in the United States was how to spend the “peace dividend.” ‘Twas heaven to be alive in those days and to embrace such illusions. It remains to be seen whether our existing constitutional toolkit will prove adequate to meet the dire challenges, whether or not labeled “emergencies” that appear all around us. And we must face the possibility that the “convergence” will take us to some decidedly unhappy places and call into question many of our continuing assumptions about the very meaning of “constitutionalism.”

A final note: It is relatively easy to label as “emergencies” the acts of acknowledged “enemies,” such as those who, say, attack Pearl Harbor or the World Trade Center, of truly impersonal entities like hurricanes or viruses, or even “systems” like the grown of unregulated financial instruments that provoked the great meltdown of 2008. Things are considerably more difficult if those generating the emergencies to whom we must react are, ostensibly, our friends and neighbors or, at least, other members of our own polity. We are often counseled, no doubt correctly, to be “civil” when referring to our fellow Americans, to treat them with respect. But if we genuinely believe them to be threats to the maintenance of such liberal democracy as we might have, then it is difficult to maintain civility. At best, one might say that many people have been misinformed by such evil institutions as Fox News. But Fox is constituted by a number of evil individuals, such as the now-departed Tucker Carlson. And the impending economic crisis is the result of the absolute spinelessness and lack of political integrity of all Republicans in the House of Representatives, whatever their attempts to distinguish their own views from ”the crazies.” A striking reality of the opening Federalist essays is the warning about threats faced by the nascent country, coupled with the harsh language directed both at our “imbecilic” political system and at specific personae, even if unnamed, who are selfish villains unconcerned about the public interest. (This is, of course, the basis of Madison’s critique of “factions” and the dispositions of individuals who become factious.) If a clear and present “emergency” lies precisely in the “deplorable” dispositions of many of our fellow citizens (and their “leaders”), then maintaining a language associated with “civility” is itself a major challenge, particularly to educators who (properly) are trained to present all contending points of views with a proper detachment. Whittington’s concern that assertions of emergency become simply a proxy for partisan disagreement is well taken, but there are times when harsh language—and even harsh action—may be required to meet genuine emergencies. Just as one person’s “terrorist” may be another one’s “freedom fighter,” so it is likely that one person’s “abusive constitutionalism” may be another one’s “necessary” response to genuine danger. All of us, these days, are walking on multiple tightropes, trying, perhaps desperately, to keep our balance.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.

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