by David Dyzenhaus. New York and Cambridge: Cambridge University Press, 2006. 266pp. Hardback. £45.00/ ISBN: 9780521860758. Paper £19.99/$34.99. ISBN: 9780521677950. eBook format. $28.00. ISBN: 9780511247927.
Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu
9/11 changed everything. At least this is the argument of President George Bush, John Yoo, and others who contend that the terrorist attacks in 2001 in the United States augmented presidential power to draw upon either a generous reading of the Constitution’s Article II “commander-in-chief” clause, or upon claims that the chief executive has extra-constitutional authority to act to respond to unique emergencies. Among the powers asserted, Bush and his defenders see him having inherent power to detain both American citizens and non-citizens indefinitely if they are suspected of being terrorists, being able to order warrantless electronic surveillance, and to declare oneself the guardian of the Constitution in times of exigency. Common to all these actions, though, is an assertion that the rule of law may have to be suspended in times of emergency in order to allow the president to respond to security threats. Bill of Rights and other procedural protections, such as habeas corpus, need to be suspended until normal conditions prevail. Asking whether such a suspension is in fact necessary or desirable is the subject of David Dyzenhaus’ compelling and thoughtful book.
While the lessons and arguments of THE CONSTITUTION OF LEGALITY have application to the United States, Dyzenhaus’ object of inquiry is to examine how governments without written bills of rights protect individual rights in emergencies. More specifically, he looks to the role that the courts have assumed in the United Kingdom, Australia, and Canada, vis-a-vis judicial review of legislative and executive action to declare and respond to crises. While some of the examples are post-9/11, such as efforts in the UK to permit indefinite detention, many are older, drawing upon laws passed in Australia and Canada during the height of the Cold War era which would have restricted the rights of individuals suspected or identified as communists. In drawing upon some of these older cases, the author is able to show how past alleged crises were handled or avoided by the courts.
Dyzenhaus’ thesis is really what he calls Carl Schmitt’s challenge. That challenge is whether the state or sovereign can respond to a crisis within the bounds of the law, or do such emergencies permit suspension of normal rule of law and a venturing into extra-constitutional power, or what John Locke would call prerogative powers. The crux of the Schmitt challenge asks really two questions, as Dyzenhaus eventually elaborates: First, is the sovereign freed from the law in emergencies; and, second, who gets to [*531] decide what and when a state of emergency exists. Even if we concede the first premise, the same person or body who is given the emergency power should not necessarily be given the authority to decide the what and when, or even the scope of the special powers and how they interact with rule of law and protection of individual rights. Chapter One provides a scathing but reasoned critique of arguments by Clinton Rossiter, Bruce Ackerman, and Cass Sunstein to defend extra-constitutional powers, finding in their claims for suspension of normal rule of law the creation of constitutional “black holes” or “gray holes” into which rights and legality fall.
While governments could simply declare emergencies and say the law has been suspended, the three national case studies reveal something more complex. Instead, in Australia and Canada when it came to the communists in the 1950s, or in the UK after 9/11, laws were adopted which appeared to sanction the suspension of normal rule of law. Thus, the facade of legality and rule of law masked, hid, or appeared to legitimize suspension of the law. Dyzenhaus, in noting this, thus wishes to distinguish between mere legality where the veneer of rule of law is observed, versus something more substantive. Clearly his aim is to respond to Schmitt’s challenge and argue that even in a crisis, there are limits to what the sovereign can do, and a constitutional order requires one to act within the law. To make this argument, Dyzenhaus draws both upon Lon Fuller and Ronald Dworkin.
Dyzenhaus wants to employ Fuller’s argument that there is an inner morality to the law. This inner morality is meant to provide some real substance that requires the law to respect norms and values, such as commitments to separation of powers, limited government, and individual rights. Legal regimes that merely are procedural lack this and really do not adhere to a real sense of rule of law. The content of this inner morality, however noble a concept or tool to distinguish mere legality from real rule of law, is left somewhat underdeveloped by the author.
Dyzenhaus draws upon Dworkin’s distinction between rules and principles to criticize legal positivism and H.L.A. Hart. Dworkin made this distinction to argue that, when the rules run out, there are still principles embedded in the law that bind the discretion of judges. Dyzenhaus uses this argument as a foil against whom he labels constitutional positivists. These are individuals who argue that in emergencies and in cases where there are no formal bills of rights, judicial discretion is still limited. His argument is that even if there are no formal bills of rights, both the inner morality of law and common law principles bind judges to respect rule of law and individual rights. If in fact constitutional regimes and judges are still bound by embedded principles and an inner morality, legal black and gray holes are filled. These embedded principles or morality, Dyzenhaus posits, may even be international legal norms. Hence, Dyzenhaus argues against the concept of dualism in international law, finding that the wall that separates domestic and international law is as [*532] open-textured as Dworkin’s legal regime that must still respect or acknowledge principles.
What all this means for Dyzenhaus is developed when he discusses privative clauses—laws or rules which preclude judicial review of emergency legislative or executive orders or actions. Judges can take three responses to these clauses: Eviscerate or ignore the privative directive; reconcile or seek to accommodate it with other canons of judicial construction; or pay deference, which is to obey and abstain from judicial review. Dyzenhaus provides detailed case law examples and discussion of all three approaches, but his clear position is against judges giving in to privative clauses. In fact, judges who truly respect rule of law in the fully blown or thick sense of seeing an inner morality and embedded principles in the constitution, will do precisely that. In sum, constitutional regimes, even those lacking written bills of rights, cannot be considered in compliance with rule of law if they fail to respect the law of rules.
Dyzenhaus’ conclusion is almost platonic. There is a rule of law continuum according to which we can judge regimes. Those that respect the inner morality of law are mostly in accordance with respect for the reality of the rule of law. Regimes that do less than this are merely fainter resemblances of real rule of law regimes. Dyzenhaus believes it is entirely possible to respond to emergencies while respecting rule of law, and he draws out an extended argument that judges have a duty to hold the government in check.
THE CONSTITUTION OF LEGALITY is a powerful and timely response to those who contend that extraordinary times demand extraordinary governmental powers that enhance legislative or executive authority at the expense of rule of law, rights and judicial review. Although the book is directed to regimes lacking written bills of rights, one can also read the arguments here as counterpoints to those who see the necessity of compromising written bills of rights in a post-9/11 world. If constitutionalism has any meaning, its very purpose is to be most valuable during emergencies. Dyzenhaus’ arguments are reminiscent of what Chief Justice Charles Evans Hughes stated so eloquently in HOME BLDG. & LOAN ASS'N v. BLAISDELL (1934), that:
Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.
This is the spirit in which THE CONSTITUTION OF LEGALITY is written, as an argument for not suspending the law when times get tough. [*533]
Despite the strengths of the book and argument, Dyzenhaus could have done a better job in several areas. His application and articulation of Fuller and Dworkin is tantalizing but not fully developed. Additionally, the arguments against legal dualism are too quick and unpersuasive. In both cases, the author floats great ideas that, if more fully elaborated, would offer a more powerful response to Schmitt’s challenge. Finally, one worries about the content of an inner constitutional morality or embedded principles because, lacking specification, they potentially set up dangerous claims for extrajudicial power that might be inconsistent with rule of law.
HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934).
© Copyright 2007 by the author, David Schultz.