Carlos Rosenkrantz

89 Texas L. Rev. 1557

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In constitutional emergencies, protecting the aspirations of the constitution may require either decisions that restrict personal constitutional rights or temporary suspensions of constitutional procedures in favor of more expedient alternatives.  Some contemporary authors address the central issue of creating institutional mechanisms to provide such expediency without irreversibly risking arbitrariness or power concentration by relying on judges to resist any attempts by the executive to restrict individual rights or normal procedures of lawmaking.

Rosenkrantz disagrees with this view, arguing that the challenges of constitutional emergencies should be resolved by designing institutions that (1) provide adequate incentives for the executive to refrain from capricious use of emergency powers and to use emergency powers only when strictly necessary for the common good and (2) protect the value of law qua law for society.  Rosenkrantz grounds his argument in the Argentinean judicial record, showing that Argentinean judges have been unable to restrain the executive’s use of emergency powers adequately or consistently. Rosenkrantz explains this record by highlighting certain attributes of the judiciary that make it difficult for judges to police the executive, and presents his own view of the value of law qua law in order to propose an institutional mechanism that does not make law subservient to power in times of constitutional emergency.