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States of Exception in American History$
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Gary Gerstle and Joel Isaac

Print publication date: 2020

Print ISBN-13: 9780226712291

Published to Chicago Scholarship Online: May 2021

DOI: 10.7208/chicago/9780226712468.001.0001

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PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 27 May 2022

Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

(p.39) 2 Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited
States of Exception in American History

Ewa Atanassow

Ira Katznelson

University of Chicago Press

Responding to Carl Schmitt’s critique of liberal democracy an important group of American political scientists in the 1930s and 1940s sought to address exigencies without compromising liberal principles, including respect for individual rights and the rule of law. They elaborated a liberal response to emergency that sanctioned departures from the rule of law only for strictly defined purposes and a limited period. This moment, we argue, when emergency powers could have clear limits, has passed. The invention and dissemination of atomic weapons, the Cold War, and the War on Terror, together with the deepening and increasing entrenchment of the security state, make that limited and strictly temporal approach to emergency no longer adequate. With the return of Schmitt’s challenge, it is imperative to think afresh about how liberalism might deal with security while staying true to itself. The essay draws on the wellsprings of political liberalism, many of whose central figures recognized the abiding need for prerogative power. Revisiting their proposed ways to reconcile a strong executive with the rule of law, we advocate an institutional imagination and identify models, such as the UK’s Investigatory Powers Tribunal, that, together, might serve us as the Roman model served our predecessors.

Keywords:   liberalism, rule of law, emergency powers, dictatorship

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