Constitutional relativists endorse the hypothesis that the constitution “creates or recognizes a constitutional law of necessity” obliging the Executive, as “Lord protector of the constitution”, to use its discretion to protect the constitutional order during the state of emergency triggered when the Executive decides that its existence is threatened (Paulsen, 2004: 1261). Stated differently, the state possesses a constitutionally entrenched natural right, which manifests itself in the Executive’s duty as steward of the constitutional order, to both proclaim the existence of a state of emergency and to use its discretion to protect the constitutional order from existential threat (Scheuerman, 2006; Paulsen, 2004). This law of necessity authorizes the Executive to use its discretionary power to override the un/written laws and norms as a means of self-defence. This power can be used to engage in unilateral preemptive invasions, to deny basic legal rights to nationals believed to threaten the constitutional order, to override the state’s commitment to international treaties and conventions, etc. This power is virtually unlimited. The Executive’s actions are limited only by the resources available to the state in its quest for self-defence (Paulsen, 2004; Scheurman, 2006; Gross, 2003; Dyzenhaus, 2009).The state of exception thus enacted can be total (e.g. marital law) or partial (e.g. derogation from human rights) and can triggered at multiple locations or sites.
Constitutional relativists make certain Machiavellian assumptions about the state’s absolute value. The foundation of political state liberated “the people” from the reign of necessity in the pre-political state of nature. Because the constitutional order provides security to the people, protecting it is the supreme end (telos) of this model of executive power. This is potentially problematic because, as James Madison observed in 1778, if the political state is the highest value, any method of preserving it–even if this entails a marked departure from basic human rights–is potentially justifiable:
[N]o axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included (The Federalist Papers: No. 44) (See: Paulsen, 2004).
Appealing to what they regard as the highest law–i.e., necessity–constitutional relativists use the highest law of the state–i.e., the constitution–as an escape clause to evade the so-called “normal” legal rules and principles which they brandish as inflexible and inefficient means to safeguard the constitutional order in a times of crisis (Paulson, 2004). Maxims like “necessity knows no law,” “salus populi suprema lex est,” “inter arma silent leges” and “raison d’etat” are rhetorical statements constitutional relativists use to illustrate the inappropriateness of “normal law” within the context of an emergency (Gross, 2003: 1042). Proponents will argue that the executive possesses “full and unfettered discretion to determine what course of action ought to be taken to fight any given crisis in the most efficient way” (Gross, 2003: 1042). John Yoo’s infamous argument “that members of the the al Qaeda terrorist network and the Taliban militia are illegal combatants under the laws of war, and so cannot claim legal protections and benefits that accrue to legal belligerents, such as prisoner-of-war status under the Third Geneva Convention of 1949” is an example of a constitutional relativist argument. It illustrates the Executive’s decision to eschew “self-imposed legal shackles” to defend the state from terrorism. It is further premised on a belief that the American Constitution empowers the Executive, as commander-in-chief, to so act to safeguard the constitution. Judges sympathetic to the polices of the Bush administration have also endorsed constitutional relativist arguments. Justice Thomas of the American Supreme Court claimed that the Bush Administration was constitutionally authorized to “to fight that war unlimited by legal restraints” (Dyzenhaus, 2009: 39). Here, Thomas explicitly endorses the hypothesis that the Executive’s authority to wield discretionary power is constitutionally entrenched. In this context Thomas was not asserting that the Executive “has the authority to act ultra vires–beyond the limits of the law” (ibid). Rather, Thomas’ point was that the constitution-itself authorizes the Executive to act outside the law (Agamben, 2005). But, constitutional relativism is not only an American phenomenon. It has been observed in Canada as early as 1918 when the Supreme Court of Canada refused to recognize Edwin Gray’s petition for habeas corpus (Gray Re). In this case, the Supreme Court found that Parliament was constitutionally authorized to delegate its legislative powers to the Governor General, which it did under the War Measures Act, under section 91 of the British North America Act: “the Peace, Order and good Government Clause.” Although “the exercise of legislative function […] by the the Governor-in-Council rather than by Parliament is no doubt something to be avoided as far as possible” the delegation and concentration of legislative powers in the hands of the Governor-in-Council was, according to the Supreme Court, not only justified but legitimate (pp. 18). “Extraordinary times […] necessitate the taking of extraordinary measures” (pp. 18), for “the safety of the country is the supreme law against which no other law can prevail” (pp. 8).
References
Dyzenhaus, David. 2009. “The Compulsion of Legality.” Pp. 33-59 in Emergencies and the Limits of Legality, edited by Victor V. Ramaj. Cambridge Books Online.
Edwin, George. 1918. Gray (Re) Supreme Court of Canada.
Gross, Oren. 2003. “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” Yale Law Review 112(5): 1011-1134.
Paulsen, Michael S. 2004. “The Constitution of Necessity.” Notre Dame Law Review 79(4): 1257-1297.
Scheurerman, William E. 2006. “Emergency Powers.” Annual Review of Law and Social Science 2(1): 257-277.