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How should we judge judicial review from the standpoint of protecting the constitutional rights and liberties of the vulnerable in times of crisis? It is in times of crisis that constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be at its most acute. To government officials, civil rights and liberties often appear to be mere obstacles to effective protection of the national interest. As Bush-administration supporters frequently intone when defending their post-September 11th initiatives, “the Constitution is not a suicide pact.” Judicial protection is also critical because crisis measures are typically targeted at the most vulnerable among us, especially noncitizens, who have little or no voice in the political process. We have been in such a crisis period since September 11th and will be for the foreseeable future. So now is a particularly propitious time to assess the value of judicial review in times of crisis. Part I of this Article will set forth the traditional view that the judiciary is inadequate in times of crisis, along with the evidence that supports it and the reasons that might explain it. Part II maintains that the traditional view overstates the case, because over time judicial decisions have had more of a constraining influence on emergency measures than appears when one looks only at the courts’ performance in the midst of a crisis. Part III surveys judicial performance since September 11th on matters of national security and argues that while the record is far from exemplary, courts have actually been more willing to stand up to the government in this period than in many prior crises. Part IV responds to a recent proposal by two leading scholars that courts and the Constitution ought to play less of a role in assessing emergency measures. Professors Oren Gross and Mark Tushnet have both recently argued that the poor performance of courts during emergency periods and the need for extraordinary emergency powers should impel us to acknowledge explicitly the validity of extraconstitutional emergency measures and leave judgment of such measures to the political rather than the judicial process. In my view, this proposal is fundamentally misguided, both because it fails to acknowledge the valuable role that courts have played, when viewed over time, in constraining emergency powers, and because the alternative of relying on the political process would almost certainly provide even less protection for individual rights than the courts have. To paraphrase Winston Churchill, judicial review is the worst protector of liberty in times of crises, with the exception of all the others.


Reprinted from Michigan Law Review, August 2003, Vol. 101, No. 8. Copyright 2003 by David Cole.

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101 Mich. L. Rev. 2565-2595 (2003)