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The Extralegal Model

  • Emily Hartz
Chapter

Abstract

When Lincoln addressed Congress after his unilateral suspension of the writ of habeas corpus in the beginning of the Civil War, he asked: “are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?” (cited in McLaughlin, p. 622). Lincoln’s rhetorical question captures the dilemma at the root of any form of emergency governance: in times of severe crisis, political societies are faced with the problem that the law ties the hands of the government and may seem to prevent it from dealing effectively with a given threat. The extralegal solution to this dilemma is to set the law aside in order to deal effectively with the crisis (Hartz 2010a, p. 77; Hartz and Kyritsis 2010, p. 161). The point being, as expressed by Lincoln, that “if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it,” the ethos of executive oath to “preserve, protect and defend the Constitution of the United States” obliges the executive to disregard that law. Lincoln’s expression of this dilemma is given in a political context. The point he makes in the political context raises the legal question of whether courts should embrace the idea that law may be set aside in order to deal effectively with a national crisis. In the following I refer to the jurisprudential model of emergency that embraces this idea as “the extralegal model.”

Keywords

Executive Order District Court American Citizen Pearl Harbor Habeas Corpus 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

References

  1. Alexandre M (1943) Wartime control of Japanese-Americans [article]. Cornell Law Q 28(4):385–413Google Scholar
  2. Cole D (2004) The priority of morality: the emergency constitutions blind spot. Yale Law J 113(8):1753–1800CrossRefGoogle Scholar
  3. Grossman JB (1997) Japanese American cases and the vagaries of constitutional adjudication in wartime: an institutional perspective. Univ Hawai’i Law Rev 19(2):649–695Google Scholar
  4. Hartz E (2010a) From Milligan to Boumediene: three models of emergency jurisprudence in the American Supreme Court. Balt J Law Polit 3(2):69–97CrossRefGoogle Scholar
  5. Hartz E (2010b) They had good reasons to hate us, so we had good reasons to fear them. In: Ardal G, Bock J (eds) Spheres of exemption, figures of exclusion. NSU Press, HelsingforsGoogle Scholar
  6. Hartz E, Kyritsis D (2010) Boumediene and the meaning of separation of powers in emergency law. Rev Const Stud 15(1):149–176Google Scholar
  7. Hartz E, Ugilt R (2012) The problem of emergency in the American Supreme Court. Law Critique 22(3):295–316CrossRefGoogle Scholar
  8. Locke J (1993) Two treatises of government. Everyman, LondonGoogle Scholar
  9. McLaughlin, A. C. (2001). A Constitutional History of the United States, Simon PublicationsGoogle Scholar
  10. Pushaw RJ (2007) The “Enemy Combatant” cases in historical context: the inevitability of pragmatic judicial review. Notre Dame Law Rev 82(3):1005–1084Google Scholar
  11. Schlesinger, A. M. (2004 (1973)). The imperial presidency. Boston, Houghton MifflinGoogle Scholar
  12. Weglyn M (1996) Years of infamy: the untold story of America’s concentration camps, Updated Aufl. University of Washington Press, SeattleGoogle Scholar
  13. Wu FH (2004) Difficult decisions during wartime: a letter from a non-alien in an internment camp to a friend back home. Case West Reserve Law Rev 54(4):1301–1345Google Scholar

List of Cases

  1. Endo, Ex parte 323 U.S. 283 (1944)Google Scholar
  2. Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar
  3. Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Google Scholar
  4. Hirabayashi v. U.S., 320 U.S. 81 (1943)Google Scholar
  5. Milligan, Ex parte, 71 U.S. 2 (1866)Google Scholar
  6. Korematsu v. U.S., 323 U.S. 214 (1944)Google Scholar
  7. Prize Cases, The Amy Warwick, 67 U.S. 635 (1862)Google Scholar
  8. Rasul v. Bush, 542 U.S. 466 (2004)Google Scholar

Copyright information

© Springer-Verlag Berlin Heidelberg 2013

Authors and Affiliations

  1. 1.University of Southern DenmarkOdenseDenmark

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