that the Romans were much more concerned with potential abuses of
emergency powers than were the designers of the modern constitutions who
perhaps put more faith in the fact that the executive had to stand for election.
3 Judicial control over emergency
power
.........................................................................................................................................................................................
Many contemporary constitutions 16 include explicit provisions establishing,
in various ways, an extraordinary and temporary form of government that
suspends rights and the normal separation of powers, in order to face emer-
gencies and preserve the political order from threats arising from internal or
external enemies or by other exceptional circumstances. 17 It is possible to
argue that, even in those regimes that do not contain explicit constitutional
provisions describing emergency powers and when they can be invoked, there
exists a kind of dormant or implicit power to deal with extreme situations.
And of course, in some of these constitutions, one canWnd fragmentary
textual support for such an idea. We do not pursue this interesting thesis
here but concentrate on self-consciously ‘‘dualist’’ constitutions.
It is important to stress that constitutional powers to suspend rights, where
they exist, are almost never actually employed in the advanced or ‘‘stable
democracies’’. The last relevant example was probably de Gaulle’s recourse to
art. 16 of the French Constitution during the Algerian crisis in 1961 .Itis
possible that ‘‘constitutional dictatorship’’ 18 as a form of provisional govern-
ment tends to die out in stable democracies, perhaps because it is too
16 There are nonetheless important exceptions like Japan, Italy, Austria, Switzerland, and most of
the Scandinavian countries. The case of the USA is more diYcult to classify. Art. 1 (section 9 , clause 2 )
of the American Constitution contemplates explicitly the suspension of a fundamental right (‘‘The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.’’), but—independently from the controversial question
concerning the agency authorized by the Constitution to suspend habeas—the clause has not been
used after the Civil War. It has to be borne in mind that the American Constitution was originally
written without listing in it fundamental rights. That may explain why it did not consider in detail the
question of their suspension.
17 Most of these provisions are speciWed in the 1995 European Commission for Democracy through
Law booklet.
18 This was the title of the book by Clinton Rossiter ( 1948 ).
emergency powers 339