and the president have broad authority to take the measures to deal with
‘‘emergencies,’’ as was the case after September 11. But there are two judges of
those emergency measures: the voters at the end of the electoral mandate; and
the courts, which can issue writs against the government if its powers are
exercised outside of judicially determined emergency circumstances. The fact
that voters can reject the incumbent government and its policies is true by
deWnition of any democratic system, including the neo-Roman examples
discussed above and does not need special comment. 21 The new role of the
courts, however, was a special consequence of the American constitutional
tradition according to which citizens’ rights are protected by independent
courts against statutes and ordinary executive actions. Following the se-
quence of judicial decisions during and after the Civil War, it became clear
that these judicial protections extended to the decisions of the president taken
under circumstances of emergency.
These constitutional developments remained a parochial American phe-
nomenon until the Second World War. The remarkable spread of mechan-
isms and practices of constitutional adjudication in the postwar period has
exposed democratic governments generally to the possibilities of judicial
regulation of emergencies. The postwar model, that at a given moment in
time (t 1 ) politically accountable organs make decisions and later on (in t 3 )
judges check those decisions, amounts, in our view, to the replacement of the
classical dualism: regular/exceptional government. In theWrst model—the
neo-Roman one—legal (constitutional) provisions can only regulate emer-
gency powersex anteby setting out the constitutional options. In the second
model—the one we are considering now and in which courts play a role—
judicial controlex postacts upon decisions made by political (elected) powers
during what they considered emergency situations. Indeed, in the new model,
courts have the opportunities to regulate government decisions in theinterim
(t 2 ) as well: The courts may be able to order the executive accord rights to
detainees during the crisis itself or even order their release. Obviously, this is a
controversial and constitutionally unsettled matter in the American courts.
Two objections can be addressed to this t 1 –t 3 model. TheWrst objection is
that courts tend to betoodeferential to the agency exercising emergency
powers. There is little systematic empirical basis for this claim, 22 and much
21 Needless to say, we speak of regular competitive elections.
22 The only systematic empirical research we know seems to claim the contrary: ‘‘The Supreme
Silence During War’’ (Epstein et al. forthcoming). This article, substantive and certainly controversial,
342 john ferejohn & pasquale pasquino