National Security and Constitutional Law. Précis: The Constitution in a Time of National Emergency

Extract

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.

The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.