The Anti-Emergency Constitution

The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril-the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution-is upon us. Such talk, the staple of commentary on the survival of constitutional democracies in wartime and other similarly trying periods, was to be expected in the wake of September 11. It was once an unspeakable thought that our Constitution should have lacunae-temporal discontinuities within which nation-saving steps would be taken by those in power, blessed not by the nation's founding document but by the brute necessities of survival.' But the unspeakable became more readily articulable when the inimitable pen of Robert H. Jackson gave word to the thought in his canonical dissent from the Supreme Court's justly infamous Korematsu decision,2 proclaiming that the great harm to liberty