Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

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The Constitution of Law: Legality in a Time of Emergency

Post-9/11 the equilibrium between security and liberty has been subject to intense political and philosophical interrogation. The metaphor of balance, although perilous, is so pervasive as to demand scrutiny of what lies in the scales, what tips them, and in whose interest. Though international and constitutional lawyers have dominated the debate about balance, the experience of criminal justice suggests that articulating a principled approach provides greater prospects of protecting rights against unwarranted erosion. This more modest approach imposes structural and procedural safeguards through the twin engines of judicial oversight and unremitting defence of due process. In this way it may be possible to enhance collective security against terrorism without diminishing individual security against the state. © Cardiff University Law School 2005.

Securing Liberty in the Face of Terror: Reflections from Criminal Justice

1. Making non-legalities in international law 2. Illegality and the torture memos 3. Black holes and the outside within: extra-legality at Guantanamo 4. Doing deals: pre- and post-legal choice in transnational financing 5. Receiving climate change: law, science and supra-legality 6. Death, disaster and infra-legality in international law Conclusion.

Non-Legality in International Law: Unruly Law

Survey Article: Emergency Powers and the Rule of Law After 9/11*

If the task of constitutional theory is to set out a language in which the discourse of constitutional law may be grounded, a question of the utmost importance is how this terminology is created, defined and interpreted. In this groundbreaking new work, Andras Jakab maps out and analyses the grammar and vocabulary on which the core European traditions of constitutional theory are based. He suggests understanding key constitutional concepts as responses to historical and present day challenges experienced by European societies. Drawing together a great and diverse range of literature, much of which has never before been touched upon by scholarship in the English language, Jakab reconceptualises and argues for a new understanding of European constitutional law discourse. In so doing he shines new light on what constitutes its distinctively European nature. This remarkable book is essential reading for all scholars and students of constitutional theory in Europe and beyond.

European Constitutional Language

The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril-the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution-is upon us. Such talk, the staple of commentary on the survival of constitutional democracies in wartime and other similarly trying periods, was to be expected in the wake of September 11. It was once an unspeakable thought that our Constitution should have lacunae-temporal discontinuities within which nation-saving steps would be taken by those in power, blessed not by the nation's founding document but by the brute necessities of survival.' But the unspeakable became more readily articulable when the inimitable pen of Robert H. Jackson gave word to the thought in his canonical dissent from the Supreme Court's justly infamous Korematsu decision,2 proclaiming that the great harm to liberty

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The Anti-Emergency Constitution

Privileges and Permissions: The Civil Rights Act of 1875

False Peace and Constitutional Tradition

Essay: Remember Endo ?

Old Man. But there are some That do not care what's gone, what's left: The souls in Purgatory that come back To habitations and familiar spots. Boy. Your wits are out again. Old Man. Re-live Their transgressions, and that not once But many times; they know at last The consequences of those transgressions Whether upon others or upon themselves; Upon others, others may bring help, For when the consequence is at an end The dream must end; if upon themselves, There is no help but in themselves And in mercy of God. (1) I INTRODUCTION The accumulated texts that supply the working materials of constitutional law are not only written records of responses to problems of government organization and claims concerning the rights of individuals. They are also an archive, an accessible collective memory, means for readers (persons who choose to read later as well as writers in the process of writing) to re-experience controversies and their conclusions, to consider and to accept, reject, or revise explanations for conclusions, and to become, in the process, more or less participants (more or less complicit) in those controversies and conclusions. If constitutional law is therefore a version of purgatory and not hell, it may be because its readers and writers are able to imagine a terminus, an "end" to "[t]he consequences" of "those transgressions" in which they are implicated. Korematsu as Justice Black wrote it seems to have supposed a short stay indeed: whatever wrong this decision did would be undone in Ex Parte Endo only a few pages further in the United States Reports. (2) If Justice Black was wrong, if neither he nor his readers are as yet purged of Korematsu's "transgressions," if Endo is not "absolution" (Jerry Kang's freighted term), (3) it may be because "the consequence" of Korematsu for the persons who were forcibly evacuated into concentration camps could not be declared "at end" in 1944 and cannot even now. Perhaps Endo did not--could not--accomplish what Black seemed to have hoped it would. Perhaps "the consequence" fell also upon Justice Black himself and now falls upon his readers. Reading Endo always requires remembering Korematsu, just as reading Korematsu always sets the stage for reading Endo. There is no "end" (it would have seemed to Yeats). Korematsu and Endo are not, however, the only pertinent texts. (4) This Article begins by sketching something of the content of The Spoilage, one of two principal publications issued after an ambitious contemporary study of what its organizers called "Japanese American Evacuation and Resettlement," undertaken by University of California social scientists and funded by the Columbia, Giannini, and Rockefeller Foundations? The Spoilage is a complex and controversial record of the efforts of camp residents, chiefly at Tule Lake, to identify and put to use effective forms of political action notwithstanding the resistance of camp administrators, sometimes dramatic and sometimes confoundingly passive. (6) These political efforts conclude--in The Spoilage at least--with mass renunciation of American citizenship by thousands of Tule Lake residents after Endo issued and after announcement of the dosing of the camps. (7) The legal aftereffects of this renunciation and The Spoilage account of it soon became subjects of decisions by the United States Court of Appeals for the Ninth Circuit, in Acheson v. Murakami (8) and its implementing successor McGrath v. Abo. (9) In many ways remarkable if today largely forgotten, Murakami and Abo substantially blocked official enforcement of the Tule Lake renunciations. These decisions and their constitutional context are explored at some length in this Article--like Endo, along with Korematsu, confronting and testing readers and writers caught in constitutional purgatory. Chief Judge Denman's opinions in Murakami and Abo, it will become dear, may be grouped with Justice Douglas's effort in Endo and Judge Goodman's decision in Kuwabara (10) blocking draft resistance prosecutions of Japanese American internees. …

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Patrick O. Gudridge

Papers

The Anti-Emergency Constitution

Privileges and Permissions: The Civil Rights Act of 1875

False Peace and Constitutional Tradition

Essay: Remember Endo ?

The Constitution Glimpsed from Tule Lake