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"Crisis Constitution?  What are you talking about, I've never heard of it!" is the usual response to my assertion that all our well-reasoned, well-intentioned arguments about the constitutionality of certain things (particularly torture) have become sadly irrelevant.  This is because something called a `Crisis Constitution' now governs us instead of our Normal Constitution.  A Crisis Constitution kicks in during declared states of National Emergency.  Such a state occurred by presidential edict after 9/11, and has not yet been rescinded.  Furthermore the Bush White House has kept busy keeping us in emergency status, real or conjured.

Following are excerpts from an article by Robert Higgs written shortly after 9/11, explain the principle whereby "...In national emergencies the Crisis Constitution overrides the Normal Constitution."  In other words, all our arguments about this or that being constitutional or not are irrelevant as long as our elected leaders, Supreme Court and we, the public, agree to remain in a state of National Emergency.

Time and chance have been unkind to the hopes of the Founding Fathers. They established the Constitution to "secure the Blessings of Liberty" to themselves and their posterity, intending their framework of freedom and government to endure through storm as well as sunshine. But the dead could not forever bind the living, and the unfolding of our history during the 20th century has brought into being a second Constitution. Besides the Normal Constitution, protective of individual rights, we now have a Crisis Constitution, hostile to individual rights and friendly to the unchecked power of government officials. In national emergencies the Crisis Constitution overrides the Normal Constitution.

And my big contention is that the Patriot Act is redundant legislation in most respects.  Presidents, as you may read below, already can and have done a lot of "unconstitutional" things when a national emergency is in effect.  The Patriot Act is throwing us into a state of permanent emergency, whereby we can never revert to the Normal Constitution:

The great danger is that in an age of permanent emergency--the age we live in, the age we are likely to go on living in--the Crisis Constitution will simply swallow up the Normal Constitution, depriving us at all times of the very rights the original Constitution was created to protect at all times. The outlook can only dishearten those who believe that the fundamental purpose of the Constitution is to protect individuals' rights to life, liberty, and property. Though earlier events, especially during the Civil War, foreshadowed the Crisis Constitution, World War I witnessed its unmistakable emergence.

After the United States formally entered the war, the government enacted legislation providing for conscription of soldiers. Though men had been drafted during the Civil War, the Supreme Court had never ruled on the constitutionality of the draft. Besides, the issues now differed: men were being drafted not to defend the government against violent domestic rebellion or invasion but to do battle in the trenches of faraway France, ostensibly to foster such abstract ideological aims as "making the world safe for democracy."

The Supreme Court readily affirmed, however, the constitutionality of the draft, refusing to consider seriously the claim that conscription constitutes a form of involuntary servitude forbidden by the Thirteenth Amendment. The outcome: many draftees were deprived of life itself by the actions of political authorities intent on the prosecution of war but unwilling to impose enough explicit taxes to hire the desired military personnel.

And more than just warfare powers, presidential powers during National Emergency have radically altered the course of domestic life:

The Great Depression, which Justice Louis Brandeis called "an emergency more serious than war," prompted a welter of actions by government at all levels. In 1932-45, 25 states enacted a moratorium on mortgage foreclosures. Such laws appeared to be unambiguous impairments of the obligation of contract and therefore in clear violation of the U.S. Constitution. But when Minnesota's moratorium law came before the Supreme Court, the majority pronounced this self-declared emergency legislation as a valid exercise of the state's police powers.

Harkening back to the railroad case of 1917, Chief Justice Charles Evans Hughes reasoned that "while emergency does not create power, emergency may furnish the occasion for the exercise of power." The Constitution's clause protecting contracts, said Hughes, "is not to be read with literal exactness." The outcome: many thousands of mortgagees were deprived of the rights of foreclosure stipulated in their contracts and compelled to make do with the alternatives provided by emergency statutes.

Patriot Act has broad confiscatory powers towards monetary instruments, which are unnecessarily.  They will only serve to make permanent the greedy policies of the Bush administration:

Also in the depths of the Great Depression the federal government abandoned the gold standard, nationalized the monetary gold stock, and abrogated the gold clauses of all contracts, public and private, past and future. This "act of absolute bad faith" astonished even some members of Congress. Senator Thomas P. Gore declared it "just plain stealing."

But the Supreme Court held that "if the gold clauses... interfere with the policy of the Congress in the exercise of the [monetary] authority they cannot stand." The Court argued that "contracts, however express, cannot fetter the constitutional authority of Congress." The outcome: thousands, perhaps millions, of parties to contracts containing gold clauses, including the many holders of U.S. government bonds stipulating payment in gold, were deprived of property rights, victimized by their own government.

Do you think concentration camps in the US is an absurd fear?  Check it out:


In the war emergency that followed the Japanese attack on Pearl Harbor, the government built an awesome command economy, suspending many individual rights. Ten million men were conscripted. The Supreme Court refused even to review challenges to the draft. Some 110,000 Japanese-Americans, two-thirds of them U.S. citizens and not one of them proven guilty of a crime, were herded into concentration camps, losing their liberty and sustaining property losses estimated at some $400 million. All quite constitutional, said the justices.

In fact we have been silently tolerating what could be deemed unconstitutional constraints against "liberty" and the "pursuit of happiness" for quite some time:

In 1981 the Court gave broad construction to the president's power to act under the International Emergency Economic Powers Act, even ruling that the president has constitutional power to act in the absence of statutory authority. The Court's 1983 ruling against congressional vetoes effectively demolished the check of a concurrent resolution provided in the National Emergencies Act. The Court further eroded the restraints on the president stipulated in the emergency acts when it ruled in 1984 that the executive branch could impose a major new curtailment of private travel to Cuba without even declaring a national emergency or complying with the procedural requirements of the National Emergencies Act.

The outcome: during the past decade, American citizens have been forbidden to travel to various countries, to borrow or buy from or lend or sell to the citizens or governments of various countries, to fulfill the terms of valid contracts, or to pursue in U.S. courts legal remedies for injuries and takings. Far from having their rights to life, liberty, and property upheld by the federal government, Americans have been routinely deprived of such rights under declarations of emergency.

Now is the time to pursue correct legislation to correct Constitutional overrides embedded in our laws due to ever frequent National Emergency events:

If the Framers intended the powers of government officials or the rights of private citizens to be any different in national emergencies, they neglected to express that intention in the Sacred Text. But the Constitution is more than the document itself. As Charles A. Beard observed, it is "what living men and women think it is, recognize as such, carry into action, and obey." And clearly, the Crisis Constitution is, and long has been, as much a part of the American constitutional system as the Normal Constitution.

Perhaps the best way to understand how the Crisis Constitution became embedded in the constitutional system is to examine the major episodes of its development, asking of each: Might it have been different? For each episode one can scarcely imagine that, given the political realities and the prevailing crisis conditions, the outcome could have been avoided.

Even justices themselves have shuddered, in ages past, at the effects of National Emergencies:

When the Court ruled on the gold-clause cases, early in 1935, it faced--as it often does in cases involving public policies with pervasive impacts--an executive fait accompli. Was the Court to say that the government must return gold coins and certificates to millions of citizens who had surrendered them and that all those who had paid legal tender instead of gold must turn around and pay the gold as initially stipulated in their contracts? The far-reaching economic consequences of such a ruling must have given the justices pause. (So disastrous did the president consider an adverse ruling on the gold clause that, in anticipation, he prepared a radio address announcing that he would not enforce it.)

Beyond the utter confusion of the marketplace lay the disruption of the administration's monetary policy, now almost two years old. The attorney general's argument before the Court emphasized the doctrine of emergency powers and the gravity of the prevailing depression crisis; the "power of self-preservation," he declared, required transcending the "supposed sanctity and inviolability of contractual obligations." Again, given the prevailing economic and political conditions, the remarkable aspect of the decision is that four justices dissented--Justice James McReynolds read their objections with muttered asides that "the Constitution is gone" and "this is Nero at his worst.'

When we submit to "terror" schemes foisted upon us (whether subway attacks, airline searches, whatever), we must come to terms with the permanent cost of our acquiescence. We must realize that we may be sacrificing our Constitution to ephemeral concerns.  Am I saying "just say "no" to terror?  Read on, tell me how else we can retain our Constitution:

Events during World War II demonstrate in its clearest form the logic of the Crisis Constitution. When elites and masses alike believe that national emergency is upon them, they call on the government to "do something." The political branches, acting more or less autonomously, adopt policies. By their very nature such policies entail costs to the public. The greater the costs, the more likely the public resistance. So governments take steps to conceal or obscure the costs, invariably substituting cost-hiding command-and-control measures for cost-revealing fiscal-and-market means of resource allocation. The necessary implication of this substitution is the attenuation or destruction of private citizen's rights--rights previously protected by the Normal Constitution.

I am emphatically saying that the Patriot Act will move us permanently into a totalitarian state.  And is anyone on Dkos yet unaware that we have to watch this White House like hawks?  We are so close to losing our Constitution completely, forever.

In sum, the Crisis Constitution, like the Normal Constitution, rests on a broad ideological base. In the 20th century the American people have come to expect, tolerate, and in many instances demand that the Normal Constitution be displaced during national emergencies.

To make matters worse, however, the Normal Constitution to which we revert after a national emergency has ended is never the same as it was before the crisis. To some degree, aspects of the Crisis Constitution, as expressed in judicial interpretation and even more so in the body of belief that supports the constitutional system, are incorporated into the Normal Constitution. Such legacies marked the aftermaths of both world wars and the Great Depression.

Once Patriot III is passed, public opinion on this issue will be irrelevant.  I would post excerpts liberally, but let's stay on the current discussion:

Emergency powers as such continue to undergird the government's denial of numerous rights, especially in relation to international travel, commercial, and financial transactions. In upholding government actions under the International Emergency Economic Powers Act, the Court quoted with approval a lower-court decision noting that the act's language "is sweeping and unqualified. It provides broadly that the President may void or nullify the `exercising [by any person of] any right, power or privilege with respect to... any property in which any foreign country has any interest.'" Thus, even in the early 1980s, as normal a time as one can expect in our era, the Crisis Constitution overrides and displaces the Normal Constitution.

Should a genuine national emergency arise, there can be no doubt about how the government would react. (Recall its actions in dealing with the partly spurious, partly self-inflicted "energy crisis" in the 1970s.) The private rights of Americans--such as remain--are balanced on a very thin constitutional edge.

Ultimately the Normal Constitution can be preserved against the inroads of the Crisis Constitution only if the politically influential elites who make policies and mold the opinions of the majority are willing to resist the passions of national emergency. If such understanding, and a concomitant commitment to individual rights, were widespread, we would have little to fear. As Abraham Lincoln said, "With public sentiment nothing can fail; without it, nothing can succeed." If the dominant ideology gives strong support to the Normal Constitution, it will survive, no matter what else happens.

But if the dominant ideology does not give strong support to the Normal Constitution, it will eventually be overwhelmed by the Crisis Constitution. Step by step, a ratcheting loss of rights will attend each episode of national emergency. And we may as well admit that such emergencies are inevitable.

Unfortunately, citizens in the United States today, with only a few notable exceptions, have neither an appreciation of this ratchet process nor a strong commitment to individual rights to life, liberty, and property. Therefore, the most likely prospect is for further expansion of the Crisis Constitution and a corresponding loss of the liberty our Founding Fathers sought to secure for us.

Originally posted to stonemason on Mon Dec 12, 2005 at 09:09 AM PST.

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Comment Preferences

    •  I should have included a poll (4.00)
      to learn whether anyone had even heard of this.

      Maybe stuff like this is why Scalia et al don't want TV coverage in the Supreme Court?

      Afraid we'll find out something useful?

      Why have I not heard a single word anywhere about the crisis constitution on DKos?  Of course I'm new, but doesn't the public know, at all, how redundant albeit damning, the Patriot Act is?

      Please recommend if you would.  Not for me, but for everyone to learn.

      thanks

      "Other than that, Mrs. Lincoln, how did you like the play?"

      by stonemason on Mon Dec 12, 2005 at 09:45:35 AM PST

      [ Parent ]

  •  Emergency Powers (none)
    The ability to invoke various emergency powers, the "Crises Constitution", has always made the courts uneasy, and often yielded results that were, shall we say, less than moral. Lincoln did it during Civil War, with the suspension of habeas corpus. Roosevelt did it with the Japanese internment. There are, of course, many other instances.

    The problem is that, when these actions take place, the citizens are usually frightened enough of whatever the current emergency is to docilely accept the suspension of rights under the invocation of the "Crises Constitution". They're afraid, and the actions taken under the Crises Constitution make them feel safer, even when those actions cannot possibly make any material difference in their actual safety.

    And this is the situation we have with the Patriot Act. Thinking people knew it would be a problem from the moment it was proposed, and the only way it can be kept in force is to make sure that large numbers of people remain afraid. We've watched Bush continually push the "fear and panic" button any time he needed to rally his troops. Democrats have not done a good enough job of countering Bush's fear-mongering, and until they do, the suspension of rights under the Patriot Act will remain in place.

    Those who ignore history are doomed to repeat it. Those who study history are doomed to know it's repeating. - JWhitlock

    by Alice Venturi on Mon Dec 12, 2005 at 10:44:50 AM PST

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